When a parent has any minor children aged under 21, one of the priorities when writing a Will would be to make a provision for a trusted friend or family member to look after the welfare of his minor children upon their demise. In the Will, he would specify this person(s) as the guardian(s) of his children either to act upon demise of both parents, or jointly with surviving parent.
1. What if the Will does not indicate a guardian?
If both parents have passed on and there are no Will or instructions in the Will regarding appointment of guardians for minor children (aged 21 and below), any person may apply to the Court to be the legal guardian of the minor children. If there is more than 1 person applying for the guardians, the Court will decide on whom should be the guardians, or they act jointly. It will be lengthy process where social workers appointed by the Court will have to submit a report to the Judge for consideration. Thereafter, the Court will grant guardianship with foremost regard to the children’s welfare.
This can cause potential conflicts between family members who may not agree with the arrangement. The father’s side and the mother’s side of family may fight for the guardianship of the child in the court.
2. What happens if nobody applies to be guardian?
In the worst-case scenario where nobody steps forward to apply to be the legal guardian, the minor children may have to be placed in foster care till it is determined if anyone will step forward. Subsequently, the child or children will be placed in an orphanage. In some unfortunate scenarios, children will be split up into different foster care, orphanages or one child may be adopted while the other is left in the orphanage.
Hence, it is advisable to appoint a guardian in the Will to avoid causing extreme distress to the children upon the demise of their parents. Doing so will also minimize costs and anxiety for family members who likes to take care of the child.
3. What is the role of a guardian?
A legal guardian has the responsibility of the long-term care of the children. He/she has the right to make decisions related to the welfare of the children. He/she will effectively have overall responsibility for the child, including:
- Choosing and providing for his education
- Providing shelter and care for him
- General maintenance i.e., clothes and food
- Consenting to any medical treatment for him and
- Providing support for him – emotional as well as financial
A guardian may not be the person who necessarily has daily care and control of the child.
4. What kinds of guardianship are there?
There are 2 kinds of guardianship:
- Natural Guardian – In the event there is a surviving parent, section 6 (1) and (2) of the Guardianship of Infants Act (GIA) stipulated that the surviving parent will be the natural guardian. He can act either alone or will act jointly with any guardian appointed by the deceased spouse in their Will.
- Testamentary Guardian – A testamentary guardian is appointed in the Will and need not be biologically related to the children.
- Main Guardian – In the Will, a Sole Guardian can be appointed to act in the event of the demise of both parents.
- Joint Guardian/s – In some cases, the testator may want to appoint a joint guardian. This guardian could act jointly with the surviving parent, or with another guardian (e.g., a guardian appointed by the other spouse). In such scenarios, all guardians must unanimously agree on every point relating to the children’s upbringing. This can cause potential conflicts, so it would be wise to choose the guardians carefully.
- Substitute Guardian – A substitute guardian may be appointed to replace one of the main guardians, when he/she is not able or willing to act as guardian. Especially when only one guardian is appointed, it is wise to include a substitute guardian in the event the appointed guardian(s) are unable to fulfil the role for any reason.
The role of a guardian is one of great responsibility. It is advisable to have a chat with your appointed legal guardian(s) to let them know your intentions before adding them into your Will.
5. Is the guardian responsible for the expenses of the children?
Under the Woman’s Charter, Sections 68 and 70, the law states it is the duty of the parent or guardian of a child to maintain or contribute to the maintenance of the children. In other words, the legal guardians are expected to use their own monies to care and maintain the children under their care, regardless if the guardian has daily access to the children.
Hence it is essential to have a Will that provides the guardians or surviving parent access to the deceased’s estate monies for the care of the child.
By: Laura Hoi
Estate & Succession Practitioner, Trust Introducer
Precepts Legacy
STEP® Affiliate Member, COT Qualifying Member 2021, Life Member MDRT
