ASSET PROTECTION
Choosing a
Guardian
Who Will Look After My Children?
BY JOSE DELGADO
In this month’ s edition pertaining to Last Will and Testaments, we focus on a non-financial aspect of your Last Will and Testament, namely the importance of nominating a Guardian for your minor children( i. e. children under the age of 18) and how they will be raised and be financially maintained.
We all have the objective of building wealth and leaving a lasting legacy to our children and future generations. Whilst we tend to meticulously plan our strategy on how we accumulate our wealth, we often tend to overlook the finer aspects of our structures, and even more so, certain non-financial aspects that affect our children, grandchildren or future generations.
In the event that both parents of a minor child pass away, the last surviving parent can nominate a person to be the Guardian of the minor children in their Last Will and Testament.
On a financial note, our law does not allow for minor children( aka minors) to directly inherit any assets from a deceased estate. Accordingly, a number of issues must be addressed to ensure that our children are not affected by this impediment.
A simple solution to avoid financial hardships for our minor children and grandchildren when we move on is to establish a structure( being a Trust or a Company owned by a Trust or alternatively a Testamentary Trust created via your Will). However, structures will not solve the issue of who will raise your children or handle their financial affairs.
Enter the solution: In your Last Will and Testament you MUST nominate a Guardian, or even multiple persons as Guardians.
Furthermore, one must consider an alternative person( s) in the event that the initially nominated Guardian( s) elect not to accept the nomination. You cannot force any person to accept the role.
In the event that you do not nominate a person as a Guardian and you do have minor children, you will have created a major challenge, as the position will now need to be decided by a Judge of the High Court in accordance with the Children’ s Act. This is a costly and lengthy process and will also create emotional and psychological issues for the children in the event that the respective families are warring over the appointment of the Guardian.
The role of Guardian covers many aspects, namely handling the financial and legal affairs of the minor( s) and also includes deciding where the child will reside and attend school, instilling values, guiding their moral and religious persuasion, and the marriage of the minor etc.
A major decision will also entail who will be the custodian of the children. As is patently clear, this is a MAJOR decision and must be decided carefully.
Fortunately your decision is not cast in concrete and you can attend to change your decision on the Guardian by settling a codicil to your Will.
Ensure that you settle a Last Will and Testament and address the very important issue of who you select to the Guardian of your loved little ones.
RESOURCES iProtect, DVK Attorneys
58 FEBRUARY 2017 SA Real Estate Investor www. reimag. co. za