The decision every parent must make, and would rather not

Considerations when appointing guardians for your minor child.

South Africa certainly is an exciting country to live in, but this excitement comes at a high price in terms of the unpredictability of events, outcomes and developments. The uncertainty this generates in our lives means that we need to consider the position of our minor children, should anything happen to us.

I recently reappointed the guardians for my daughters. In the past, no-one had seemed suitable for the task and so my wife and I had at first appointed our parents as guardians. As time passed (and our parents got older) we realised that this arrangement had some serious shortfalls and needed revisiting. When it comes to appointing a guardian of minor children in your will, there are many practical aspects to consider – some of which might surprise you.

Soft considerations/practicalities

  • Lodging and schooling

Consider the practicalities around schooling and lodging of your children if orphaned carefully. Appointing guardians in a different town (or even suburb), might require your child to move schools away from their friends and familiar surroundings. If an older child is to remain in the same school, consider e.g. availability of a school hostel and discuss this with your child and guardian to test their feedback.

  • Tertiary education

Tertiary studies can be extremely expensive. Consider your educational aspirations for your children (type and duration of various courses). Discuss how failed study attempts (failing subjects/changing courses halfway) should be managed by the guardian. Consider how each child can enjoy a fair, individualised education opportunity and the financial support mechanism necessary to reach their full potential.

  • Sport/culture

Each child will develop their own sport/cultural journey with different time/cost investments. Consider how each child can enjoy a fair, individualised financial support mechanism on this journey.

  • Money habits/lifestyle

Money habits are unique to each family. Discuss age-appropriate allowances/benefits for each child and your family’s money habits with the guardian. Also discuss certain lifestyle decisions (e.g. sleepovers, pocket money, etc.) with both guardians and children (if age appropriate).

  • Family involvement/conflicts

The appointed guardian remains primarily and ultimately responsible for the safety and welfare of each child. This priority has to carry most weight in all decisions relating to where the children stay/visit during weekends, holidays, birthdays, Christmas, etc. This is also a very important discussion the parent needs to have with their immediate family and in-laws, especially when choosing guardians outside of your immediate family circle.

  • Succession

Consider a second tier of guardians and make it part of the discussion. If you fail to do so (although it’s highly unlikely that it would ever be used), it could leave your children at the mercy of the guardians appointed by your chosen guardian in their will. This could land your children in the care of individuals with no real connection to your family. Further, consider specifics like what happens to your children should your appointed guardian get divorced or emigrate. The second tier of guardians should be discussed with your appointed guardians for inclusion in their will, upon your death.

  • Pets

This might seem insignificant to some, but being accompanied by their favourite pet might help smaller children to cope with a traumatic experience. Consider and discuss these possibilities with the appointed guardians.

Uncompromising financial provision

The single non-negotiable factor for a guardian’s appointment, should be sufficient financial provision for the foster children.

Most families already have enormous financial obligations just providing for their own children. An additional financial burden from more children could add stress to relationships, mean less time spent together (due to greater absence to earn more) and possible resentment from the guardian parents. It is hence inconceivable how any guardian can accept their role without assurance of the necessary financial provision therefore in place. This should be based on actual calculations and not on a ‘thumb suck’ number.

I recommend that the financial provision should be absolute, without any contingencies or strings attached like in these examples: financial support from a going-concern business/farm/ grandparent/selling of assets etc. All these scenarios carry additional risk to your guardian/children. For example: you might plan to sell the farm for financial support to your children. In the absence of a willing buyer (due to a land claim/draught), this plan fails. Contingencies like these can push your children’s guardians into financial misery.

Testamentary/inter vivos trust

A testamentary/inter vivos trust is still one of the most effective mechanisms to provide for minor children’s financial needs.

It is essential that you consult an estate planning specialist, to align your financial wishes for your children with both your will and testamentary/inter vivos trust deed. I would recommend appointing a guardian/s as a trustee/s (upon your death). This guardian can directly represent your children’s financial needs at trust meetings. Other trustees could be confidants, including at least one independent professional trustee for administrative, directing and conflict resolution purposes. 

Appointing guardians is a rather complicated matter as no one is ‘you’. It can however be simplified by discussions (perhaps in writing) between parents and guardians (including the children, where age appropriate). In fact, I would not recommend that anyone agrees to be a guardian unless they’ve had such a detailed discussion (perhaps use this article as catalyst), no matter how ‘flattering’ the request may seem. Some of these principles could also apply to your beloved pets. Find out sooner, rather than later, how you are leaving your ‘children’ behind.

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