LEGAL GUARDIANSHIP
By Shelton Mahandana
In terms of Section 18 (3) of the children Act 38 of 2005 (the Act), this means to administer and safeguard the child’s property and property interests and assist or represent the child in administrative, contractual, and other legal matters; or give or refuse any consent required by law in respect of child.
Who Can Be Appointed As A Guardian?
It is important to note that any other person with an interest in the well-being of a child may approach the High Court for an Order to grant them this responsibility. However, the final decision always rests with the High Court of South Africa. This Court is the Upper Guardian of all minor children and cannot grant an Order contrary to the best interests of the minor child. The Court allows the minor child, of a certain age, level of maturity and developmental stage, to have a say in the matter regarding their guardianship.
Assignment of guardianship by court order:-
In terms of section 24 (1) a person having an interest in the care, well-being and development of a child may apply to the High Court for an order granting guardianship of the child to the applicant.
When considering an application contemplated in subsection (1), the court take into account the best interest of the child, the relationship between the applicant and the child, and any other relevant person and child; and any other fact that should, in the opinion of the court, be taken into account.
In the event of a person applying for guardianship of a child that already has a guardian, the applicant must submit reasons as to why the child’s existing guardian is not suitable to have guardianship in respect of the child.
Appointing a family member by agreement between the child’s parents
If the child’s parents or guardians agree to appoint someone else as the child’s guardian, they can do so by way of a written agreement. This agreement must be signed by all parties and must be registered with the Master of the High Court.
By wills
A person can also appoint a legal guardian for their child in their will. However, this appointment is only effective after the person’s death and must be confirmed by the Master of the High Court.
