Private Client Advisory

What does Guardianship mean?

on Wednesday, 08 June 2016. Posted in Private Client Advisory

What does Guardianship mean?

What is a guardian?

A guardian of a child is someone the law has given the right to make decisions about -

  • where the child lives;
  • what school the child attends;
  • medical treatment;
  • what the child’s culture/religion will be; and
  • any change to the child’s name.

Who can be a guardian?

The mother and father, if they are living together during pregnancy and at the birth, are joint guardians of a child.

A step-parent needs to be appointed a joint guardian by way of an application to the Court if that step‑parent wishes to have guardianship rights. A caregiver is not automatically a guardian but could be appointed if an application is made to the Court.

Where one parent takes it upon themselves to make important welfare decisions for a child, such as where the child should live or go to school, they are in breach of the other parent’s guardianship rights. All guardianship decisions are required to be made jointly by consulting, where practicable, with other guardians.

Guardianship is not custody or what we now call day to day care, which grants a caregiver the right to care for a child at certain times of the week.

An important distinction between a guardian and a person who has day to day care is that a guardian does not have the automatic care of the child on a daily basis. If a guardian does not have day to day care of a child, that person has the right to apply for day to day care.

A guardian under a will

A guardian can appoint someone to take over their role upon their death. This appointment is known as a ‘testamentary guardian’.

The testamentary guardian does not automatically have day to day care of a child, but a surviving guardian/parent may and that parent/guardian can challenge the appointment of the testamentary guardian through the Family Court for day to day care if they have concerns.

Guardianship rights conclude when the child is 18 years of age.

For more information or assistance about Guardianship matters please contact Alison Gilbert, Partner on (649) 979 2253 or .

DISCLAIMER

This information is intended to be general in nature. You are strongly recommended to seek your own legal advice in relation to the matters dealt with here.

© Brookfields Lawyers 2016 – All Rights Reserved

 

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