Over the years, there have been misconceptions as to the circumstances which must arise before a guardian may be appointed. Most persons believe that an application can be made to the court at any time to secure the appointment of a guardian. This is not so.
The Children's (Guardianship and Custody) Act, makes provision for the appointment of guardians and shows that such appointments can only be made in limited circumstances. In fact, the act highlights only three instances in which guardians may be appointed.
(1) According to section 4 of the act, the father or mother of a child may, by deed or will, appoint any person to be guardian of that child after his or her death. Where such an appointment is made, the surviving parent will be a joint guardian to the child along with the guardian appointed by the deceased parent.
(2) In the event that both parents appoint guardians for a child under their will, both guardians will act jointly after the deaths of the parents.
(3) Guardians may be appointed by the court. Where one parent dies after appointing a guardian under his or her will, the surviving mother or father may object to the appointment. In such a case, the court may determine that the guardian should act jointly with the surviving parent. However, the court could also rule that the surviving parent should be the sole guardian.
Interestingly, the guardian appointed under the will of one deceased parent may challenge the surviving parent's right to custody of the child by alleging that the parent is unfit. On hearing such an application, the court could determine that the surviving parent and the guardian should act jointly. The court could also award sole custody of the child to the guardian and order the surviving parent to pay maintenance.
Replacement of guardian
Where the court is satisfied that a child's welfare would be best served by removing a guardian from his or her office, the court will appoint a new guardian in the place of the one who has been removed.
Apart from the instances cited above, there is no provision under the Children's (Guardianship and Custody) Act with respect to the appointment of guardians. Therefore, the usual request for guardians to be appointed while the parents are still alive cannot be met with reference to this act. And the only other circumstances I have found in which guardians are appointed, relate to limited appointments for the purpose of civil or criminal court proceedings.
Sherry-Ann McGregor is a partner and mediator with the firm Nunes, Scholefield, DeLeon & Co. Send feedback and questions to firstname.lastname@example.org or email@example.com.