A guardian is an individual who assumes legal and personal responsibilities for another person, often a minor (someone below the legal age), someone with disabilities, or an elderly individual who cannot make decisions independently. Guardianship is especially common for minors, where a guardian is appointed to ensure their well-being and welfare.
Under Section 3 of the Guardianship of Infants Act 1961,
“The guardian of the person of an infant shall have the custody of the infant, and shall be responsible for his support, health and education.”
What does the law say?
Under the law, both biological father and mother of the child has equal rights and authority over the child. In the event of divorce, a civil court may appoint one parent as the legal guardian or grant joint custody to both parents. If both parents are deceased, a relative, such as an aunt, uncle, or grandparent, may step in and become the child’s legal guardian. The relative can apply for guardianship by seeking legal advice and assistance from a lawyer to navigate the court process.
It was stated under Section 6 of the Guardianship of Infants Act 1961,
“Rights of surviving parent as to guardianship
6. On the death of a parent of an infant, the surviving parent, if any, shall, subject to this Act, be guardian to the infant either alone or jointly with any guardian appointed by the deceased parent, and–
(a) if no guardian has been appointed by the deceased parent; or
(b) in the event of the death or refusal to act of the guardian or guardians appointed by the deceased parent,
the Court may, if it thinks fit, appoint a guardian to act jointly with the surviving parent.”
For instance, Mary and Peter has a 5 year old daughter – Jane.
- Mary passed away in a tragic accident leaving behind Peter and Jane. According to Section 6 of the Guardianship of Infants Act 1961, Peter shall be the guardian of Jane, either alone or jointly with any person appointed as guardian by Mary.
- However, if both Mary and Peter died together in the same accident and no guardian has been appointed by any of them (if they died intestate, meaning without a Will), a relative may step in and become the legal guardian of Jane.
The new legal guardian could be an aunt, uncle, or even a grandparent. To take on this responsibility, the new legal guardian may need to file an application to the court for the guardianship or custody of the child.
What happens if both parents of the infant child passed away?
Nonetheless, there are instances where disputes may arise over the guardianship of the children. Certain relatives might believe that they would be better suited to act as guardians, leading them to seek to take over as the children’s legal caregivers.
If such a situation arises, it is advisable to consult a lawyer. The paramount interest should be the overall well-being of the children. It is crucial to ensure that the final decision protects their best interests and ensures a stable and nurturing environment for their growth and development.
When do parents need to appoint guardian for their children?
As for when to appoint a legal guardian, there is no specific timeframe or deadline. However, certain circumstances warrant careful consideration, such as when a parent plans to travel overseas without their children, when aging parents still have underage children, during severe illness or terminal disease, before undergoing major medical procedures, after a divorce, or after remarriage. It’s also essential to have a contingency plan in case the appointed legal guardian becomes unable to fulfill their role due to unforeseen circumstances like death or illness. You may want to include appointment of legal guardian for your infant child while writing your Will.
Ultimately, appointing a legal guardian for your children is a significant decision that should be made with careful thought and consideration of the well-being and future of your loved ones.
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