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Guardianship

The word guardianship, like the word custody, conjures up many emotive issues especially in the divorce arena and in the struggle for power between spouses. Custody is no longer the issue, we now talk about care and contact, but guardianship remains.

 

WHAT IS EXPECTED OF A GUARDIAN?

In terms of the Children’s Act a person who acts as a guardian must:

1). Administer and safeguard the child’s property and property interests;
2). Assist or represent the child in administrative, contractual and other legal matters; or
3). Give or refuse any consent required by law in respect of the child, including:
- consent to the child’s marriage;
- consent to the child’s adoption;
- consent to the child’s departure or removal from the Republic;
- consent to the child’s application for a passport; and
- consent to a sale of any immovable property of the child.

 

THE GUARDIANSHIP ACT

The parents are usually joint guardians and are called the 'natural guardians'. A natural guardian has a duty to support her or his children. If for some reason the natural guardian cannot carry out his or her duties, the court appoints a 'legal guardian' for the children.
The Guardianship Act (No 192 of 1993) has been repealed by the Children’s Act.
The Children’s Act also regulates the balance of power between joint guardians. The first principle is that each guardian may independently and without the consent of any other guardian exercise any right or perform any duty arising from guardianship.
However, in the absence of a court order to the contrary, the consent of every guardian is required in respect of:
• the marriage of the minor child,
• the adoption of the child,
• the removal of the child from the republic by a parent or by any other person,
• the application for a passport by or on behalf of any child under eighteen and
• the alienation or encumbrance of immovable property of the child.

 

THE RESPONSIBILITY OF A GUARDIAN/S

The duties of a natural guardian are imposed by law and the parent has no choice whether to be guardian or not. On the other hand, guardians appointed by the court, or nominated in a will, can choose whether or not they wish to accept the office of guardian.
Because of this, there are certain differences between the duties imposed on the natural guardian and the duties of appointed guardian.

The guardian has a duty to administer the property of minor children. Any property that the children might have inherited remains their property, but will be under the control of the guardian, since the law considers minors to be unqualified to look after it themselves.

It is the duty of the natural guardian, if the children have more money than is required for their maintenance or education, to invest the money in 'prudent yet profitable' securities. Failure to make a prudent and profitable investment on behalf of the children, may see the guardian held liable for any interest lost.

A guardian appointed by the court or nominated in the natural guardian's will is obliged to pay the minor children's surplus money to a fund called the guardian's fund, which has been created by statute and is administered by the various masters of the Supreme Court. However, such a guardian may, in certain circumstances, be relieved of this duty and be able to use the funds for more profitable investments.

Although the duty to administer children's property extends beyond looking after their money, no guardian, whether appointed or natural, can sell or mortgage any of the minor children's immovable property unless permission to do so has been granted by the Supreme Court or, if the property is worth less than R10000, by the Master of the Supreme Court. How-ever, if a guardian is appointed in terms of a will, the will can make provision for the guardian to make these decisions alone. In deciding whether to grant consent to the sale or mortgaging of property belonging to minors, the court will be guided by what it sees as the best interests of the minors.

Although the guardian has a general duty to administer the minors' property, the duty extends only to that part of the property that needs to be administered - for example, money that needs to be invested or property that needs to be sold or mortgaged. A guardian who does not have custody of the children has no right to possess the personal property that children need in their day-to-day lives - for instance, books and clothing.

Non-natural guardians will also have to get letters of tutorship from the Master of the Supreme Court before being able to administer property of their wards. Guardians (but not natural guardians) who have been issued with letters of tutorship must keep inventories of their wards' property. These accounts must be lodged with the Master of the Supreme Court.
Moreover, they may have to provide security to the Master of the Supreme Court to ensure that should they administer the property negligently or fraudulently the minors will not suffer. The master will have recourse so as to the security to reimburse the minors for any losses.

An appointed guardian is entitled to remuneration for administering the minors' estate. This can be set out in a will or be determined in accordance with the tariff laid down by the master.
RIGHT TO SUE
Minors cannot be sued, nor can they sue, unless they are represented or assisted by their guardian. Thus, if minors are awarded damages, those damages belong to them, not the guardian. Usually the minors, not their guardian, are liable for the costs if an action is unsuccessful.
CONTRACTS
A guardian must authorise any contract - including the purchase of major articles - entered into by a minor. If the guardian does not ratify or authorise a contract made by a minor, either expressly or by implication, there is no contract. In such a case the minor cannot be sued for breach of contract, but may be ordered to return anything acquired in terms of such a void contract.

How to be a responsible guardian

Safety:
Lives in a safe house.
With safe people who treat
him/her right.
With appropriate clothing.
With a good support system.

Health:
Has good food.
Has needed equipment: glasses, adaptive technology, etc.
Has a good doctor & dentist.
Gets regular check ups.
Isn’t taking unnecessary.
Medications - Side effects of medication are monitored.
Gets prompt, appropriate, quality hospital care.
Helps make choices about own medical treatment.

Honest environment:
The person’s money isn’t stolen.
He/She isn’t over charged.
Loans are repaid.
Rental agreements are fair.
Deposit is returned when moving.
People don’t take his/her belongings without compensation.
Work is paid.

Receive and maintain Rights:
Find a good lawyer, if needed.
Receive mail, use the phone and see family as desired.
Be listened to at ISA or IEP meetings.
Have choices.
Get services and benefits that the person is entitled to.
Vote.
Have privacy.
Make own decisions.
Help the person follow his/ her dreams.
Be more independent.
Find people to listen to.
Find people to help take the necessary steps.
Believe in the person’s gifts and talents.
Learn to make choices & decisions independently.
Know how to appeal if dissatisfied with guardian.

Supporting the child:
One of the most important differences between the natural guardian or parent and the appointed guardian is that the natural parent has a duty to support the child and must, if necessary, use his or her own funds to do so.
The appointed guardian is under no such obligation and need not use his or her own funds to support a ward. The minor's funds can be used if they are available, or any funds that have been made available from some other source for the child's maintenance.


FACTS REGARDING GUARDIAN-SHIP

The parent has no choice whether to be guardian or not.

Guardianship means playing an active role in someone's life.

The Children’s Act regulates the balance of power between joint guardians.

No guardian can sell or mortgage any of the minor children's immovable property unless permission to do so has been granted by the Supreme Court.

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