By David Thomson, Senior Legal Adviser at Sanlam Trust

Whether you are a godparent or you’ve asked someone else to be your child’s godparent, do you have clarity on what the term actually means? There is a critical difference between a godparent and a legal guardian and getting the two confused could have very serious and unintended consequences for your child or you.

Your child’s godparents have no legal role when it comes to your child’s protection and wellbeing after your death whereas their guardians have a legal role with long-term responsibilities. A godparent is essentially a spiritual role because its origins are religious. Although there might be cultural variations, the role today is largely a symbolic one.

Meanwhile, a legal guardian will be in a position to make all of the important decisions regarding your child’s welfare should you die or become incapacitated, so considering who you would like to appoint as legal guardian to your child if something were to happen to you is a serious process. You want to be sure that they will care for your child in the way you intended.

Importantly, you also need to get the consent of those you intend to task with looking after your child, as this is a major responsibility should it come to that.

How is a legal guardian appointed?

If someone nominates you in their Will as the guardian of their child, the process is only binding once you accept that nomination. Assuming that you do, you are duly appointed by the Master of the High Court when parents pass away. You will then be required to take care of the child and make decisions such as where the child will live, their schooling and general care until the age of 18, or until they have the means to financially support themselves.

Exactly what does being a guardian entail?

It’s important to note that there are two types of guardianship, and depending on the provisions made for the child by the parents before their passing, the difference between these could have potentially devastating effects on the finances of the guardian.

When you agree to be a guardian, the Master of the High Court is required to issue Letters of Tutorship or Curatorship. A ‘Tutor’ is defined as a person who is authorised to take care of the child and their assets. A ‘Curator’ only takes care of the assets of the minor child. It is important to note that you can refuse appointment in the first place.

If you agree to be both Tutor and Curator, you are fully liable and responsible to provide appropriate support to the minor child until they turn 18. But the obligation can stretch beyond the age of 18 because if the child has insufficient means to complete their education and is still unemployed, you will have to keep supporting the child. Needless to say, Thomson recommends considering the situation very carefully before agreeing to be a child’s guardian.

How should parents choose a guardian?

When choosing a potential legal guardian for your child, keep the following in mind:

• While relatives might seem like an obvious choice, this isn’t always the most appropriate option if your child doesn’t have a close relationship with them. A close family friend who is familiar with the child and possibly has children of a similar age and disposition might be a better choice. The compatibility with the children is the most important.
• While you need to make provision in your Will for funds to care for and educate your child, it’s strongly advisable to ensure the person you nominate as guardian is financially sound with enough means to ‘absorb’ your child into their family.
• If your child is already a teenager, it’s worth talking to them about this. You are making a critical decision that will determine your child’s future, so it is important that the child is involved in the process.
• The guardian should also be a person who shares your values and spiritual beliefs – ultimately, the least disruption to your child’s routine, the better.
• Whenever you review your Will or discuss it with your partner or financial adviser, you should consider the financial and emotional wellbeing of your nominated guardian and carefully consider their suitability. If the nominated guardian is not in a position to look after your child anymore, you should seriously consider nominating a new guardian.

A trusted financial adviser should be appointed to assist with drawing up an appropriate financial plan, which includes provision for minor children in the unforeseen event of both parents dying. Also, setting up a trust of any kind is a complex matter. It’s crucial that you obtain the assistance of a qualified fiduciary practitioner. It will be money well spent to secure your child’s legacy.