Appointing A Guardian For Child Care

How many parents think about the fate of their children’s care if they (the parents) were to pass away at the same time? Most people do not like to think of a situation in which they would not be around to bring up their children, but it is important to plan for such as occurrence, however unlikely it might be.

In making provisions for the one's children’s care, an important consideration would be the appointment of a suitable guardian.

By appointing an individual or couple as guardian(s), usually via a will or a deed instrument, you're ensuring that your child’s care will not be neglected during their bereavement. It is also a proactive step towards comprehensive estate planning.

But how do you appoint a guardian? What are the qualifications of a suitable guardian?

Appointing a guardian is easy; parents who have written their wills would not have missed the provision regarding the appointment of guardians for children below 21 years of age.

Legally one can appoint guardians through several channels, but the simplest and most cost-effective way is via a will. It makes more sense (to appoint in a will) instead of through a special deed document, for instance, as the cost of writing a will is inclusive of the guardianship portion.

The law doesn't require the testator to acquire a written or official consent from appointed guardians. However, for practical reasons and to avoid future disputes, it is best that you inform and obtain, at the very least, verbal approval from your chosen guardian. Thus, the guardian is fully prepared to look after the child’s care if the sad situation arises.

However, note that an appointment is not legally binding on the guardian. Naming someone as a guardian doesn't bind the person legally. It's only an indication of the testator's preference. When it's time for the appointed guardian to assume the role, he can decline by citing valid reasons. There are no penalties.

Parents should note that the naming of guardians is crucial if they have young children who cannot fend for themselves if they're left orphaned. If parents die without a will, or with a will that does not address the issue of guardianship, the children will most likely be put under the care of the Welfare Department or placed in an orphanage.

For parents, the challenge lies in appointing suitable guardians. From the legal perspective, there are no stipulated criteria for suitable guardians. The law doesn't restrict anyone from appointing one’s preferred persons as guardians. It's a matter that is close to the heart and the wrong decision will leave behind a lasting impact on the child’s care. For this reason, testators must exercise sufficient care and caution.

It is advisable for couples to discuss and come to an agreement on the choice of guardians. This is to avoid disputes when the wills are executed. If the spouses name different persons, the matter will likely be referred to the court and a final decision will be taken based on the court order.

When appointing a guardian, the focus isn't so much on the material well - being but the ability of the person to provide adequate affection and a positive living environment for the children. It's more important for the person to have good parental instincts and capability.

The person should ideally be someone who will be able to love and care for your children just the way you do, maybe not in exactly the same way, but will put in that much of effort in carrying out the role.

Michael Russell

Your Independent guide to Child Care

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