Guardianship: Why Every Parent Should Appoint a Legal Guardian

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It is the responsibility of the parent to ensure the best possible outcome for their children, in case anything happens to them. Writing a will is the least you can do to ensure your children’s future. 

Making a plan for your children’s future is a critical aspect of parenting and it is important to ensure that the plan is given the importance it deserves. A will can provide the security and protection your children will need in the case of any unfortunate event.

Writing a will should not be viewed as an invitation for death, but instead, as a precautionary step to ensure that your children’s needs are met in case of any unforeseen circumstances. 

It is up to you to create a plan and to decide who will take care of your children, or else, they will parent themselves, distributed among relatives-sometimes against their will, or the state decides, to the worst, putting them in an orphanage.

Guardianship, through a will or deed

When it comes to a time when you can't take care of your kids anymore, it's important to consider guardianship. Guardianship is when you name someone in your will, deed or other legal document to become the legal guardian (parent) of your child or children should you pass away.

The process for guardianship does require a bit of paperwork, but if done properly, it can be a great way for you to provide for the future of your children and ensure that they are taken care of should something happen to you.

There are three main ways to set up guardianship:

1.  Through a will: this is where you name somebody in your will as the guardian (parent) for your kids; this person will automatically assume the parental responsibilities of your children but it is important to seek approval by a court after you pass away to avoid conflicts. 

It is also important for your appointed guardian to seek court approval, because, both parents have a right to appoint separate guardians and this may prevent a conflict situation if one of you dies, for the surviving parent to cooperate with the guardians, or if both of you die, the two appointed guardians may conflict. But they should work together, hence the importance of the court.

2.  Through a deed: this is where you set up a trust with the beneficiary as your child and designate someone as the trustee who will take over parental responsibilities of your children, manage and control the funds left over in the trust on behalf of your child until they reach adulthood.

3.   Application to the Children’s court: If you can longer take care of your children either due to incapacitation, or a sudden death, any person can apply to court to be appointed as a guardian or a children’s officer can appoint someone through the children’s court to take up parental responsibility.  

In Kenya, acquiring legal guardianship involves a court process and requires the following steps:

Filing an application: The first step is to file an application for legal guardianship with the Children's Court in the area where the child resides. The application should include the reasons for seeking guardianship, the proposed guardian's details, and the child's details.

Notification: After filing the application, the court will notify the child's parents, any person who has custody of the child, and the child, if he or she is above the age of 10, of the application.

Investigation: The Children's Officer will conduct an investigation to determine the suitability of the proposed guardian. The investigation will involve a home visit, interviews with the proposed guardian and the child, and a criminal background check.

Report: The Children's Officer will prepare a report and submit it to the court, which will use it to make a decision.

Court hearing: The court will schedule a hearing where the proposed guardian and any other interested parties can present their case.

Decision: The court will consider the report and any evidence presented during the hearing and make a decision on whether to grant legal guardianship. If guardianship is granted, the court will issue an order.

Compliance: Once the court issues an order, the proposed guardian must comply with the conditions set out in the order.

It's worth noting that legal guardianship in Kenya is usually granted in cases where the child's parents are deceased, unable to take care of the child, or have abandoned the child. In cases where the child's parents are still alive and are willing and able to take care of the child, legal guardianship may not be granted.

No matter which route you take, guardianship is a great option for making sure that if anything happens to you, there's someone ready and willing to make sure that your child or children are taken care of in the way that you would have done yourself.

What is a will?

A will is a legal document that details how your property, including bank accounts, real estate, jewelry, cars, and other assets, will be distributed after you pass away. Here we emphasize why having a will is essential in deciding who will take care your children in the event you cannot for various reason.

In African culture, writing a will is associated with death. It is believed that if you write a will you are inviting death. Hence, despite the vital role a will can play in preventing conflict within a family, it is treated with skepticism and very few adults have written a will. A will is also highly associated with properties and therefore, those who consider themselves as not wealthy in terms of property ownership, will generally see the need to write a will.

A will is much more than just a way of distributing property. It is especially crucial for parents because it designates a guardian to take care of their children if they die before the children become legal adults. It also appoints a property guardian or trustee to manage children's inheritance until they become adults.

It must be written when you are of sound mind for it not to raise doubts. The will should include everything from assets and bank accounts, as well as who should take care of the children, who will provide a home for them, and who will be responsible for their affairs.

To ensure that your will is honored, you are encouraged to inform the people that are involved in the agreement. This sharing of information will ensure that everyone is on the same page about expectations and obligations, thus reducing the risk of conflict and misinterpretation of your wishes.

You should also inform your chosen guardian about the will and about the responsibilities associated with the role. This will help ensure that the guardian is aware of their role and expectations as well as your wishes for the children.

A will can also name an executor, who will pay your debts and taxes, and ensure that the rest of your estate goes to the people you have chosen. Additionally, a will can make charitable contributions, donate organs, and specify funeral arrangements.

What happens if I die without a will?

If you die without a will, there is no guarantee that your assets will go to the people you want or that your children will be cared for by the person you believe will do the best job. State laws have a formula for distributing assets without a valid will, which may not align with your wishes. For instance, without a will, some states appoint an administrator to manage children's inheritance until each child turns 18, making it difficult for your partner to access the money to help raise your children.

In an informal setup, like is commonly practiced in Kenya, your relatives sit and decide who takes care of your children-sometimes children will be distributed among relatives-even those who may not be willing. Others will only be interested in managing your property or wealth if any, and neglect your children. A will can resolve possible conflicts, secure your children’s parental care and protect your property until your children are adult to inherit it. A will is a planning tool for parental responsibility and the future of your children.

Do I need a lawyer to write a will?

You don't necessarily need a lawyer to make a will but you will need to put it in writing (you can dictate for someone to write for you), then make sure it is signed by two people for it to be considered valid.

Otherwise, investing in the right resources, such as a self-help book, a will-writing software program, or a family lawyer, can save you time, energy, and money. A lawyer can also help you make a legally valid will that includes all your assets, the people you want to inherit them, and the executor who will carry out your wishes.

To make your will a legal document, it must usually be typed or computer-generated, signed by you, and witnessed by two adults who are not beneficiaries or closely related to you.

In summary, having a will is crucial for parents and individuals who want to ensure their assets go to the right people and that their children are cared for by their chosen guardians. With the right resources and understanding of legal requirements, you can create a will that reflects your wishes and provides peace of mind.