What is a guardian?

Guardians can only be appointed for children under 18. A guardian has parental responsibility (PR) for the child. This means that the guardian can make important decisions about the child’s life in areas such as medical treatment and education. A person who does not have PR, but who has care of a child, has only a limited legal right to do what is reasonable in all the circumstances to safeguard or promote the child’s welfare.

If both parents of a child die without appointing guardians, only the court can appoint a guardian. If the parents simply agree informally with friends and relatives who will look after the child if they die, nobody will have PR for the child unless:

  •        The court appoints a guardian.
  •        The court makes an adoption order.
  •        A step-parent acquired PR while married to one of the parents.

Who can appoint guardians?

Only the following can appoint guardians:

  •        A parent with PR for a child. A mother automatically has PR for her child when the child is born, but a father who is not married to the child’s mother does not automatically have it (although he would have it once he is registered as the father on the birth certificate).
  •        A guardian (that is, an individual whose appointment as guardian has become effective).
  •        A special guardian.
  •        The court (specifically, the Family Division of the High Court).

Who can be a guardian?

Only individuals can be guardians (and not, for example, trust companies). It is possible to appoint more than one guardian and parents often choose to appoint a married couple as joint guardians.

When does the appointment take effect?

An appointment of a guardian usually takes effect on the death of the person who made it (appointor) if no parent has PR for the child. If the only reason that the appointment does not take effect on the appointor’s death is that there was a surviving parent with PR, the appointment takes effect when the child no longer has a surviving parent with PR.

Therefore, it is necessary to coordinate appointments made by each of the child’s parents.