Emigration and Guardianship

It is important that if you have minor children that you nominate a guardian or guardians for them should you die before they turn 18.

If you do not nominate a person of your choice the Court may either decide on a a suitable person or make the child a ward of the state, which is probably not what any parent would choose. Should you die Intestate, that is without leaving a will, the Court will make the decision. This makes it so important to include this as part of your estate planning process.

Different situations require different considerations.

If you are a SA citizen resident in SA then SA law applies to the winding up of your estate after death.
If you reside permanently in another country then the laws of that country apply.

Before appointing a guardian, discuss this with the intended person, or persons if it is a couple, to ensure that they are willling to take on the role should your children be orphaned. It is possible that it may be considered an onerous burden or there may be financial issues which may prevent their accepting your nomination of them. If the children are old enough, say at least 13, discuss it with them. Children today are far more mature than 30 years ago and you might be surprised how they would feel living with someone whom you think is the perfect one.

If you reside in another country but wish to nominate a SA guardian this may be a problem with the Court. There are many reasons why a Court would not support a foreign guardianship including, but not limited to, bad relations between the countries involved, there is family in SA with whom the child or children are familiar, a complete change of culture etc. If you wish to nominate a foreign guardian, especially if it is not a person well known to the child(ren), it may be prudent to put an explanation in your will.

As emigration is a long process and there may be problems in getting the child(ren) to the approved guardian in another country, it is advisable to nominate a ‘stand-in’ guardian. Before nominating such a person do your research to become familiar with the travel flights and times, who will accompany the child and what the procedure for an unaccompanied child is. Not all airlines have the same policies and procedures. Also consider the types of school and recreational activities in the foreign country.

You, as the parent, are in the best position to make a decision about a guardian for your children but it is important to consider all the possible ramifications about child guardianship.

These 8 points sum up the process.

1. Have a will in which a guardian for minor children has been nominated.
2. Discuss the nomination with the intended person
3. Do your research on any issues with regard to emigration and guardianship
4. Should you feel any concern get expert advice from an Immigration/Emigration Attorney in SA or contact one in the other country.
5. Nominate a ‘stand-in’ guardian as procedures can take a long time. It is recommended that this guardian live in the same country as yourself while preparations are made for the children to travel to the chosen guardian and country.
6. If the nominated guardian does not live in the same country, put an explanation in your will as to why that person is your choice
7. Seriously consider appointing a ‘stand-in’ guardian.
8. Update your will whenever changed circumstances require this eg. divorce, child turns 18, some situation changes for the nominated guardian(s) 

This blog is a summary of an article by Kate Oosthuizen of Shepstone & Wiley Attorneys in Durban. Some extra information and ideas have been added by myself. If you wish to contact Kate you can do so on +27 (0)31 572 7542 or Koosthuizen@wylie.co.za The article appeared in The Mercury21 September 2020.