How to Become A Legal Guardian In South Africa

A legal guardian is a person who has been court appointed to care for another person, and make decisions on their behalf. Essentially, a legal guardian assumes legal responsibility over another person.

What is Special Guardianship?

Special Guardianship is slightly different as it refers to a Guardian who is appointed by the Court under the Children Act 1989. It is often used as an alternative to adoption as, unlike adoption, the legal status of the birth parent is not extinguished by a Special Guardianship Order.

Why do I need to appoint a Legal Guardian in my will?

Although it is unpleasant to think about, parents should always consider who would care for their children if both of them were to pass away. If, tragically, both parents did die and had not identified who would be the children’s guardian, this appointment would be made by the Court.

Clearly, a Court will not know the children as well as the parent, nor will it know the nuances of their particular family. It may not necessarily select the person whom that parent would have chosen.

Does guardianship override parental rights?

Guardianship effectively transfers parental rights from the parent to the Guardian. If any parents, or persons with parental responsibility, are still alive, guardianship will not take effect. In this way, parental rights override guardian rights.

How to Become A Legal Guardian In South Africa

Requirements for Becoming Legal Guardian In South Africa

Although anyone at any age might need a legal guardian depending on the circumstances, the most commonly thought of group is that of minor children. A court has the power to appoint an adult guardian for a minor should their parents die, abandon them, surrender parental rights, or are otherwise unable to provide them with proper care.

There are two sets of legal rights that may be awarded to a guardian:

Guardian of the person.

A guardian of the person has the responsibility to provide for the minor’s physical and personal needs, and has the right to legally consent on their behalf. The legal guardian is in charge of the minor’s food, shelter, clothing, education, and medical needs. If the child’s parents are still living, they are legally required to continue financial support of the child.

Guardian of the estate.

The guardian of the estate has the responsibility to maintain the minor’s financial or other assets until they are able to do so themselves. They owe the ward a fiduciary duty to responsibly manage their property

Both of these roles can be separated, but both sets of legal responsibilities may also be given to one person. Like most legal matters involving children, the standard that the court will refer to when appointing guardians is “the best interest of the child.” The court will weigh many factors such as:

Stability;

The child’s preference;

Ability of the proposed guardian to provide proper care;

The relationship between proposed guardian and the child’s family; and

Any other information regarding the character of the proposed guardian.

How do I get legal guardianship in South Africa?

A legal guardian of a child should be a fit and proper person, responsible and a trusted friend or family member. If required, a legal guardian may be appointed by way of an application to the High Court of South Africa.

How is a legal guardian appointed in South Africa ?

If you wish to appoint a guardian who is not the other parent, then the legal guardian that you appoint will act jointly with that parent. If the surviving parent objects to this arrangement, then your legally appointed guardian may apply to the Court.

How do I get guardianship of my child without going to court?

STANDBY GUARDIAN: Custody of a child can also be obtained without going to court by becoming a Standby Guardian. A standby guardianship is created by having the parents sign a document available from the probate court stating that they are consenting to have the grandparent or relative take guardianship of their child.

What is an unfit mother in South Africa?

The legal definition of an unfit parent is when the parent through their conduct fails to provide proper guidance, care, or support. Also, if there is abuse, neglect, or substance abuse issues, that parent will be deemed unfit.

Is power of attorney the same as guardianship in South Africa ?

A power of attorney and a guardianship are tools that help someone act in your stead if you become incapacitated. With a power of attorney, you choose who you want to act for you. In a guardianship proceeding, the court chooses who will act as guardian.

What is the responsibility of a legal guardian in South Africa ?

For Guardians Over the Person:

Provide proper care, maintenance, education, and support. Supply food, clothing, shelter, and necessaries. Authorize medical, surgical, dental, psychiatric, and psychological care (although some medical treatments, such as experimental treatments, require court approval).

Do legal guardians receive money from the state?

Guardians receive an allowance, known as a guardianship allowance, to enable them to meet the needs of the child or young person. The guardianship allowance is the same rate as the Department of Communities and Justice ( DCJ ) statutory care allowance.

Is a guardian financially responsible?

Generally speaking, a guardian is not personally responsible for the ward’s (person being taken care of) debts or bills. The guardian has a duty of care to ensure that all bills are paid on time, but if there are no assets to cover the ward’s liabilities then the guardian’s responsibility stops there.

Does a legal guardian have parental responsibility in South Africa ?

A guardian, whether appointed under a Will or by the Court, has parental responsibility for the child or children within his or her custody. Upon appointment, the guardian has all the rights, duties, powers, responsibilities and authority that a parent of a child holds in relation to that child.