Legal vs Natural Guardianship: Guardianship Of Your Minor Child/children Upon Your Death


Melcom Oosthuizen

We are all familiar with the fact that, upon death, our estates will be governed by the provisions of our wills and testaments. The same applies to what happens with our beloved minor child/children and who will act as their guardian and caregiver upon our death. However, not everyone fully understands the relevance of these provisions and further the legal practicality thereof.

As a starting point, it is necessary to delve into the relevant provisions of the Children’s Act, Act 38 of 2005 (hereinafter referred to as “the Act”).  Guardianship in terms of Section 18(2) of the Act is included amongst the list of parental responsibilities and rights that a person may have in respect of a minor child.

The provisions of Section 18(3) sets out the rights and responsibilities of a person who acts as the guardian of a minor child and includes the following:

“(a) Administer and safeguard the child’s property and property interests;

 (b) Assist or represent the child in administrative, contractual and other legal matters; or

 (c)Give or refuse any consent required by law in respect of the child, including –

  1. Consent to the child’s marriage;
  2. Consent to the child’s adoption;
  3. Consent to the child’s departure or removal from the Republic;
  4. Consent to the child’s application for a passport; and
  5. Consent to the alienation or encumbrance of any immovable property of the child”

The biological mother of a minor child automatically receives full parental rights and responsibilities. The Act in addition to the aforementioned provides a father, whether married to the biological mother or not, similar or equal rights in this regard.

Section 24 of the Act allows any other person having an interest in the care, well-being and development of a child, to approach the High Court for an order granting the person guardianship of the child. The Court in such an application will consider the best interests of the minor child, the relationship between the person and the child and any other fact (in the opinion of the Court) that should be taken into consideration.

Section 27 of the Act deals with the assignment of guardianship and care. It provides that a person/parent who has sole guardianship has the opportunity to appoint a fit and proper person as guardian of the child in the event of their death. This assignment may happen in terms of a will.

In addition, the person appointed as guardian in terms of the will obtains natural guardianship, but this in itself does not necessarily mean that said individual will be the legal guardian. It must however be noted that the High Court, at all relevant times, is considered as upper guardian of all minor children. The High Court will therefore have to authorise and endorse the assigned individual as the legal guardian of the minor child and further confirm the person fit and proper, taking into account the best interest of the minor child/children. It is therefore essential that any person who was assigned guardianship, in terms of a will, approaches the High Court to bring effect to the provisions of the will and obtain an order from the High Court providing them with legal guardianship of the minor child.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

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