Guardians for Dependants

In the event that something should happen to them, parents of minor children are naturally concerned that appropriate and responsible people will look after their children. This is normally done by naming a person, or a couple, as the guardian(s) of the person and property of such children. These are usually family members or close friends.

Parents of minor children are equally entitled to custody of the child. Unless a parent has lost custody of a minor child, in the event of one parent's death, the right to custody of the child "passes on" to the other parent. Should a parent have lost their right to custody, the appointment of a guardian is only effective by the person solely entitled to custody of that child on the day immediately prior to the day the appointment is to take effect.

It should be noted however, that the appointment is only temporary until the court declares a more permanent order for custody. Consequently, should the named guardian wish to have permanent custody of the child(ren), they need to bring a formal court application for custody, with the will as evidence in support of that application. Despite the designation of a guardian in the will, anyone may apply for and attain custody should the court determine that it is in the best interest of the child. However, the will of the custodial parent will be highly persuasive and judges are usually reluctant to substitute their own opinion for that of the deceased parents concerning what would be best for their children. An exception to this is in the instance where there is very strong evidence that following the deceased parents' wishes would be harmful to the children.

Guardianship not only involves physical care and custody of a child but can also involve naming someone to look after the property of the child until the child reaches the age of majority. It is important to keep this in mind and to name someone whose judgment you trust and respect since your children's future may be greatly affected by your decision.