What happens to your child when both parents die at the same time?

By Drum Digital
15 April 2014

If both you and the father of your children had to die today, what would become of your children? This is a question we rarely ask ourselves but one of great importance. There are different consequences depending on whether you have a will or not, and if you haven’t done so yet, you should get your affairs in order today.

Appoint a legal guardian

Atisha Ghela, founding partner of Atisha Ghela and Associates, says a legal guardian is someone who steps into the shoes of the parent and assumes the parenting role in every facet, just like the parents did.

She explains that if parents didn’t specify legal guardians for the day-to-day care of their children, the high court will do so as it automatically acts as upper guardian of children in need of care. In many cases relatives step in and assume the role of caregiver, but if they weren’t specified by the parents, they have to apply to the high court to become the children’s legal guardian.

What happens if there are no relatives?

According to the Child Care Act, if both parents die without a will and there are no relatives or next of kin, the commissioner for child welfare of the area the child lives in will, through a magistrate, appoint someone to take care of the child.

What is the difference between a natural and legal guardian?

Ghela explains that if parents leave a will nominating someone to care for their children, these people are considered natural guardians. However, these guardians still need to apply to the high court for legal guardianship.

She adds that even though it’s not compulsory by law to appoint guardians, it’s definitely in the child’s best interest. “Parents have to think this through carefully and nominate someone in their will in the event they both pass away at the same time.”

What about godparents?

It’s important to note your child’s godparents aren’t automatically legal guardians. As with any other relative or nominated guardian, they too would need to apply to the high court.

Who do you entrust your children to?

When you choose a natural guardian, you need to make sure it’s someone you trust to take care of your children in the way you would, if not better. Ghela emphasises the importance of choosing someone both you and your children are comfortable with.

“The guardian must be able to provide for the basic necessities of the child and create a holistic environment that is conducive to the best interests of the minor child.”

She also advises you tell the people you nominated of your decision. If it comes as a surprise after your passing, they could refuse their appointment as legal guardians and this could lead to a multitude of problems for your children.

Make sure your children are provided for

Death can come at any time and it’s rarely expected. You don’t know the financial strain your child’s guardian will face when you die so make sure to leave enough funds to assist them in raising your child.

“It is important for parents to create a testamentary trust or call for their executor [the person in charge of carrying out your wishes as per your will] to create a trust upon their death in favour of the minor children,” Ghela says.

She emphasises the trustee of the aforementioned trust is only authorised to administer assets and not to be the legal guardian – there’s a clear distinction in their appointed duties.

Here’s help

All of this may seem quite complex but the bottom line is that in order to make the best plans for your child you need to have a will.

For more information and legal counsel contact Atisha Ghela of Atisha Ghela & Associates Attorneys at Law:

Tel: 082-356-3576

Fax: 086-539-2479

Email: atisha@ghelalaw.co.za

-Shandukani Mulaudzi

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