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Appointing a Guardian

Guardians and caregivers appointed in a will


Biological mothers, biological fathers who qualify to have parental responsibilities and rights  and any other holder of full parental responsibilities and rights are guardians of children.  These guardians may appoint a third party or third parties to act as a child’s guardian(s).

A parent who is the sole guardian may appoint a fit and proper person as guardian of the child, or to care for the child, in the event of his/her death. The parent must include this appointment in his/her will. It will only come into operation if the parent dies and if the appointed guardian expressly accepts the appointment. The parent can appoint more than one guardian.

Parents who are or have been married to each other, or who have never been married but the biological father qualifies to have parental responsibilities and rights, are co-guardians unless a court has awarded one of the parents sole guardianship to the exclusion of the other. Upon the death of either of the parents, the other usually becomes the sole guardian. An appointed guardian or care-giver cannot ordinarily oust the surviving parent as guardian.
​
Parents who retain joint parental rights on divorce are co-guardians, so if one dies, their ex-spouse automatically obtains care of the child. If the deceased has nominated someone else in their will to have care or guardianship, their ex-spouse will have to agree to relinquish his/her rights or share such rights before the provisions of the will can take effect. However, the court will always look at what is in the child’s best interests. If the ex-spouse is an unfit parent, the court may well afford care or guardianship to any other person who applies. Factors that courts consider when someone other than a biological parent applies for care and guardianship are discussed in more detail below.

If the only surviving spouse dies, the person he/she has appointed as the ‘sole natural guardian’ will be vested with the care of the child and acquire full parental responsibilities and rights upon acceptance of the appointment. If the will of the deceased makes no mention of the child’s personal care, the appointment of a guardian may entitle that person to care for the child.

The child’s views must also be taken into account in any decision regarding the appointment of a caregiver or guardian. The Act states that every child of an age, maturity and stage of development able to participate in any matter concerning him/her has the right to do so in an appropriate way. There is no set age at which children can make their own decisions, but the older and more mature they are, the more their wishes will be taken into account. With younger children, a skilled legal representative working together with a child psychologist or social worker can convey the child’s views and wishes to the court, and make recommendations on what they believe will be in the child’s best interests.

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Contact Details

BERTUS PRELLER
​MAURICE PHILLIPS WISENBERG

20th Floor, 2 Long  Street, Cape Town, 8001, South Africa
Telephone: +27 21 419 7115


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Email: familylaw@mpw.co.za
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  • Home
  • Divorce
    • The Divorce Process in South Africa
    • Rule 41A Mediation
    • The Marital Property Regimes >
      • Marriage in Community of Property
      • Marriage out of community without accrual
      • Marriage out of community with the inclusion of the accrual
      • Universal Partnerships
      • Register Antenuptial Contract Online
      • Changing your matrimonial regime.
    • Division of Assets at Divorce >
      • Forfeiture of Assets in a Divorce
    • Evicting your spouse divorce
    • Retirement Funds and Divorce
    • Living Annuities
    • Hiding Assets in a Divorce
    • Trusts and Divorce
    • Divorce a Missing Spouse
    • Adultery and Suing a Third Party
    • Domicile in Divorce Cases
    • International Divorces in South Africa
    • International Divorce Law >
      • UK Divorce Laws
    • Choosing a Divorce Attorney
    • On-line Divorce
    • Lawyer Fees and Costs
    • Important Aspects of a Divorce
    • Dealing with Emotions During Divorce and Separation
    • Divorce Statistics
    • Divorce Therapy and Counselling >
      • Marriage and Relationship Therapists
    • Rebuilding Your Financial Life
    • Divorce Attorney Cape Town
    • Divorce Polls
    • Ingredients of a successful relationship
    • Uncontested Divorce
    • Uncontested Divorce - What Happens on the Court Day?
  • Maintenance
    • Maintenance Child COVID19
    • Spousal maintenance
    • How to calculate Child Maintenance?
    • Maintenance Defaulters
    • What Happens if you don't pay child maintenance
    • Child Maintenance Frequently Asked Questions
    • Rule 43 Interim Maintenance Pending Divorce >
      • Can I appeal a Rule 43 Order
      • Apply for Costs in Rule 43
      • Financial Disclosure Rule 43
      • Rule 43 Maintenance
    • The Maintenance Manual
    • Grand Parents and Maintenance
  • Children
    • Custody and Coronavirus
    • Relocation and Child Abduction >
      • International Child Custody Law South Africa
      • Tips on international child custody
    • Unmarried Parents and the Law
    • Parenting Plans >
      • Conflict and dispute-resolution mechanisms
    • The non-custodian parent and contact
    • Appointing a Guardian in a Will
    • Introducing a new partner to your child
    • Refusal of Contact
    • Suspending Parental Rights
    • Parental Alienation
    • Facilitation
    • Living Arrangements
    • Joint decisions about your child
    • Paternity Disputes
    • The Family Advocate
    • Parenting during separartion
    • Children's Act 38 of 2005
  • Abuse
    • Gender Based Violence in South Africa
    • Domestic Abuse Forms
    • Evicting Wife
    • Domestic Violence Corona Virus
    • Divorcing an Abusive Spouse
    • What is Coercive Control?
    • What is Emotional Abuse
    • What is Sexual Abuse
    • What is Financial Abuse
    • What is Stalking
    • What is Verbal Abuse
    • What is Spiritual Abuse
    • What is Social Abuse
    • Revenge Porn
    • Steps to obtain a Protection Order
    • Domestic Violence eBook
    • The Protection Order
    • Who Qualifies for a Protection Order
    • Breaching a Protection Order
    • Questions on Domestic Abuse
    • Signs of an Abusive Relationship
    • Domestic Violence Information
    • Harassment
  • Cohabitation
    • Maintenance and Cohabitation
    • Sample Cohabitation Agreement
    • Engagement and the law
    • Formalities for marriage in south africa
  • Same Sex
  • Family Law eBooks
  • Family Law Links
    • The South African Court System
    • Court Rolls
    • Family Law Legislation
    • Family Law Blog
    • Family Law Newsletter March 2017
    • September 2016 Family Law Newsletter
    • Family Law Newsletter 2017 1
    • New Family Law Cases
    • Family Law Matters
    • Register for the Online Family Law Course
    • Online Family Law Education
  • About the Author
  • Contact
  • Charities