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Who must take care of your children after your death?

The Children’s Act, 38 of 2005 (hereinafter referred to as the Children’s Act) governs the laws relating to the care, contact and the protection of children. The guiding principle, in all matters, is the best interest of the child.Section 27 of the Children’s Act states:

Assignment of guardianship and care:

    • (a) A parent who is the sole guardian of a child may appoint a fit and proper person as guardian of the child in the event of the death of the parent.
    • (b) A parent who has the sole care of a child may appoint a fit and proper person to be vested with care of the child in the event of the death of the parent.
  1. An appointment in terms of subsection (1) must be contained in a will made by the parent.
  2. A person appointed in terms of subsection (1) acquires guardianship or care, as the case may be, in respect of a child
    • after the death of the parent; and
    • upon the person’s express or implied acceptance of the appointment.
  3. If two or more persons are appointed as guardians or to be vested with the care of the child, any one or more or all of them may accept the appointment except if the appointment provides otherwise.

The final decision (approval) concerning the appointment of a caregiver or guardian for a minor rests with the High Court of South Africa, as this Court is the upper guardian of all minor children, and it, therefore, cannot give an order contrary to the best interest of the minor. You, as the natural guardian, can make provisions in your will by appointing a fit and proper person that you wish to have as caregiver or guardian of your minor children at your death.

The child’s views must also be considered in any decision regarding the appointment of a caregiver or guardian in a will. The Act states that every child of an age, maturity and stage of development able to participate in any matter concerning him/her has the right to do so in an appropriate way. There is no set age at which children can make their own decisions, but the older and more mature they are, the more their wishes will be considered.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)