Leaving on a jet plane

The increasingly important matter of offshore guardians with respect to minor children has become a more common subject within the South African context. With this in mind, South Africans find themselves in the position of having to familiarise themselves with different exchange control rules and government policies in new countries, when selecting family members to look after their children upon their passing.

Guardianship in South Africa

Currently the age of majority in South Africa is eighteen years. Under our legislation a minor child cannot inherit assets directly and would need to be in the care of a legal guardian appointed by the court. Thus in the normal course, parents need to consider two aspects – who will look after their children’s daily needs, and who will look after the money their children would inherit. However, when a South African parent nominates a guardian living outside South Africa, there are a few additional issues that need to be deliberated.

Practical considerations

‘Location location location’ – Every country has different legislation when it comes to guardianship and one should not assume that a South African minor will be allowed into another country merely because the guardian you nominate is legally entitled to reside in that country.

Finances – As the parent of such a minor child you would need to take into account that whatever financial provisions have been made for your child, they will be affected by the exchange rate of the country in which the nominated guardian resides.

A compassionate view

A minor that has undergone the loss of a parent, or possibly both parents, will clearly be experiencing emotional distress. A parent who may be deciding on where this child will live, needs to consider the emotional impact of the new family on the minor, whether the new family takes the form of an aunt, cousin or even a third party. Particular consideration should be paid to certain questions, such as whether the child has ever been abroad or if there is an existing relationship with the intended guardian/s.

Nonetheless, you would also need to have a discussion with the intended guardian regarding whether they are willing and able to take on an additional child or children in the event of your death.

Using a trust as an option

Many parents set up a trust during their lifetime, or through their will, to house inheritances for minor children. This can be a useful and efficient vehicle in which to hold the assets. Yet once again exchange control rules need to be taken into account when transferring assets to a South African trust where the minor beneficiary will most likely be moving abroad permanently in the event of a parent’s death. In some instances a diversification strategy may give cause for keeping assets in a South African trust, but in most cases the trust will only restrict the beneficiaries in receiving their inheritance abroad.

Let’s look at an example

The United Nations Convention on the Rights of the Child (commonly abbreviated as the CRC, CROC, or UNCRC) is a human rights treaty setting out the civil, political, economic, social, health and cultural rights of children. The Convention generally defines a child as any human being under the age of eighteen, unless an earlier age of majority is recognised by a country's law.

In Australia, the Immigration (Guardianship of Children) Act No. 45 of 1946, makes provision for the Guardianship of certain alien children. Otherwise known as the IGOC Act, this Act ensures that minors who arrive in Australian territory unaccompanied and with the intention of settling in Australia permanently, have the Minister for Immigration and Citizenship as their legal guardian. Certain children, who were adopted overseas or enter Australia for adoption purposes, also fall within the ambit of the IGOC Act.

Guardianship continues until the child turns eighteen years of age, leaves Australia permanently, becomes an Australian citizen or when the minister directs that the child will not be covered by the IGOC Act. This may occur, for example, when the child is adopted or when a relative over the age of 21 takes responsibility for the child.

Additionally, a child who enters Australia holding an Adoption visa where the adoption is to be finalised in Australia or where the adoption is not recognised, is officially under the guardianship of the Minister for Immigration and Citizenship. This will mean that the intended guardian of a minor child will have to legally adopt the child.

CONCLUSION

Choosing a suitable guardian to take care of a minor child can give rise to some complex issues, with the well-being of the child a preponderant element. Accordingly, we recommend that you consult a specialist at the time you draft your will so that you can establish whether your wishes can be practically implemented.