Appointing a guardian is an issue that parents with children, under 21 years old, may have to tackle.
There are 2 types of legal guardians:
- A natural guardian; and
- A testamentary guardian
A natural guardian is the surviving parent of the children. On the other hand, a testamentary guardian need not be biologically related to your children and is appointed in a will (more below).
Section 7 of the Guardianship of Infants Act (GIA) entitles parents to appoint any person to be a testamentary guardian for their children.
Why Should I Appoint a Testamentary Guardian?
In the unfortunate event of your death, it is advisable to ensure that your beloved children receive the care and protection that you would like them to have. This may be done through the appointment of a testamentary guardian.
A testamentary guardian is a person who legally steps into your shoes after your death. He or she will take care of your children in your stead. The testamentary guardian will also have custody over your children.
This means that he or she will have the power to make decisions affecting the welfare of your children until they reach 21 years of age. These decisions may range from the basic provision of food, clothing and shelter to the fulfilment of your children’s emotional and educational needs.
In the event that there is a surviving parent, section 6(1) and (2) of the GIA mandate that the surviving parent will be the child’s guardian together with the guardian that you have appointed in your will.
If you choose not to appoint a testamentary guardian for your children, you will not have control of who takes care of your children after you and your partner’s death.
In the absence of any surviving parent and appointment of testamentary guardian, any person may apply to the court to be the guardian of your children under section 6(3) of the GIA. The court will then determine whether to grant guardianship to the applicant with foremost regard to your children’s welfare.
In the event that no persons apply to be the guardian of your children, any children you have that are below the age of 16 will be placed under the care and protection of the Ministry of Family and Social Development according to the Children & Young Persons Act. This entails the placement of your child in a home.
Who can I Appoint as a Testamentary Guardian?
You may only appoint persons who reside in Singapore as a testamentary guardian. However, the appointed person need not be biologically related to your children.
This means that you may appoint close and trusted friends to be a testamentary guardian for your children. You may also appoint more than one guardian.
Note that as you choose the person(s) to appoint as a testamentary guardian for your children, your partner may also appoint testamentary guardian(s) in his or her own will.
If both you and your partner appoint different guardians in your respective wills, the guardians appointed will act jointly according to section 7(5) of the GIA, after the surviving parent’s death. This means that they will have to agree on all decisions made in their capacity as a guardian.
Who Should I Appoint as a Testamentary Guardian?
The person you have in mind should first be willing and able to be your children’s guardian after you pass away. This would naturally entail a discussion of your children’s long-term financial, physical and custodial arrangements with that person.
It is prudent to consider whether the person you have in mind has values and beliefs that are similar to yours and your partner’s. After all, that person, if so appointed, will be responsible for the upbringing of your children.
Another important aspect to consider is whether the proposed guardian has a positive relationship with your children.
How Do I Appoint a Testamentary Guardian?
A guardian may be appointed during the drafting or amendment of your will. It will be typical to include the personal information of the guardian in your will. For example, his or her full name, NRIC number and residential address.
Further, you may explicitly draft the clause in your will to set limits on the authority of the guardian. For example, you may specify that the guardian is appointed only for the “person” or the “property” of your children (i.e. managing your children’s property), although the latter is uncommon.
You may also specify a time for the termination of the appointment of the guardian. For example, after your children turns 18 years of age.
However, if the termination of guardianship occurs while your children are still 16 years old and below, the Ministry of Family and Social Development may place your children in a home under the Children & Young Persons Act.
What If My Partner Objects to My Appointment of the Guardian After My Death?
In the case that the surviving parent objects to the appointment of the guardian, the guardian may apply to the court under section 7(3) of the GIA.
Depending on the circumstances of the case, the court could:
- Order that the guardian is to act jointly with the surviving parent as your children’s guardian;
- Order that the guardian is to be the sole guardian of your children; or
- Refuse to make an order. Meaning, the surviving parent will remain the sole guardian.
Disputes between Joint Guardians
Where there are joint guardians or guardians acting jointly (as is the case between a surviving parent and an appointed guardian), disagreements may arise between them as to how your children should be raised after your death.
In such a case, either guardian may apply to the court for direction regarding the matters in difference under section 8 of the GIA.
The court will then exercise its discretion in determining the case. Some examples of this could be:
- An order regarding the custody of the children and the surviving parent’s right of access to them, having regard to the children’s welfare;
- An order for the surviving parent to periodically (e.g. weekly) pay a reasonable sum towards your children’s maintenance or education, having regard to the surviving parent’s means; and
- A variation or discharge of any order previously made
In such legal proceedings, the court will take the welfare of your children to be the most important consideration.
Do note that there are other matters that you should consider when drafting a will, such as who your assets should be distributed to upon your death.
Feel free to get in touch with our wills lawyers if you wish to seek assistance in drafting a will. You can also use our WillMaker service to make a will online. It has the feature of appointing a guardian for your children in your will.
This article was first published on Singapore Legal Advice and was republished here with permission.