Guide to Legal Guardianship
If you and your spouse pass away while your child is still a minor, someone will have to step in to take care of the child. The best way to ensure that a person you choose is caring for your children is to appoint a guardian. This article will set out why it is important to establish a guardian, and how.
For an overview on writing a legally valid will, please see Ultimate Guide to Writing a Will in Singapore.
Legal Guardianship
In your will, you can legally appoint a guardian to care for your children in your absence. When the will is carried out, the person is given custody over your child, which enables them to make important decisions that can have long term implications, concerning their health, education, values, and general upbringing.
If you have provided the guardian with assets for your children, they will also be responsible to manage those assets and ensure that they are used for your children’s best interests.
Why nominate a guardian?
If both parents die in some unforeseen event such a car accident or a natural disaster, it is important to that they’ve named someone to make decisions in the best interest of their children.
Without an established guardian, it will also take time to find a suitable person to care for your children. If a suitable next of kin is not identified by the courts, the state may take the child into its own custody to ensure the child’s best interest. Your children could be placed in a home for vulnerable children and young persons. This is hardly a desirable outcome for most parents for their grieving child.
To avoid a protracted process where your children’s care is uncertain, it is a good idea to name a guardian in your will.
Choosing a guardian
You can legally appoint anyone above 21 years of age to be the guardian for your children, according to Section 7 of the Guardianship of Infants Act . A good choice is a family member (other than your spouse) or a very close family friend.
Some important considerations when you choose a guardian are:
- How well do your children know them and how comfortable are your children with them?
- Can they be trusted to act in the best interests of your child?
- Do they have the financial resources to take care of your child, either independently or through provision in your will?
- Do they have experience raising children?
- Do their values match those that you hope to instil in your child?
- When you have named someone, do inform them so you have their consent, and can act immediately should the need arise.
It is common practice to appoint a temporary guardian in your will, in case your chosen guardian lives abroad.”
How does a guardian gain custody?
By appointing a guardian in your will, you will have already established preliminary legal guardianship of the child. Unless any authorities or the courts are of the view that your child is in danger, the child will be left in the custody of that guardian. At any time, a court may ask your guardian to show evidence of their capacity to care for the child.
Your guardian will have to apply under the Guardianship of Infants Act for a court order from the Family Justice Court in order to travel overseas with the child. Any issuance of this order could be subject to a security deposit to be paid by the guardian.”
What happens if my guardian is an overseas resident?
If you choose a guardian who is not resident in Singapore, you should establish a temporary guardian for the child in the event that the person you appoint is not living in Singapore, to ensure temporary care of the child in the interim.
Any guardian who lives abroad will have to apply for a court order to grant guardianship, which will be generally recognised by immigration authorities around the world. The courts may not automatically grant guardianship to your preferred choice. A number of factors including the best interests of the child will be used to determine eligibility.
Guardianship does not automatically guarantee residency or citizenship in the guardian’s country of residence. It simply permits the child to exit the country with the guardian.
Frequently Asked Questions
Do guardians get paid?
Guardians are not paid unless this is explicitly stated in the will. However, the cost of caring for your child can be covered by assets set aside for this purpose.
Do guardians need to hire a lawyer?
If they need assistance to obtain a grant of permanent legal guardianship, your guardian may want to hire a lawyer. You can provide for this expense in your will.
What if the other parent of my child survives me?
Under the law in Singapore, if the other parent consents, both the guardian named in your will and the other parent can become joint guardians and make decisions about your child’s care together.
