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Choosing a guardian of your child in your absence


Date Posted: 7/3/2012 9:08:14 AM

Posted By: meg soni  Membership Level: Gold  Total Points: 2477

There are many decisions we make in life whose impact is felt even after death.Today there are many single parent families due to divorce,separation,death of a spouse or unplanned pregnancies. We are also witnessing an increase in children orphaned by HIV/AIDS.There are some reasons why we need to embrace provisions of the law that encourage us to make decisions to ensure that our children are taken care of by able individuals who we can trust when our life is over.This is done by appointment of a guardian.

Who is a guardian?

A guardian is defined in the children act of 2001 as a person appointed by the parent or by an order of the court to assume parental responsibility for the child upon the death of the child's parent.Such a guardian may be appointed in respect of any child who is resident of Kenya regardless of whether the child is a Kenyan citizen.Also a guardian does not have to be a Kenyan citizen or resident.A guardian may be appointed in respect of the person or the estate of the child or both.When a guardian is appointed in respect of the estate of the child,it means that the guardian need not to have actual possession of the child but would have power to administer and invest any property of the child in his name for the benefit of the child.Failure to do so amounts to a criminal offence under the children' act.A guardian who is appointed in respect of the child is the one who has actual possession,charge and control of the child.

Appointment of a guardian.

A parent may appoint a guardian by Will or Deed.For an appointment by Deed to be valid,the instrument appointing the guardian must be dated and signed by the person making the appointment in the presence of two

witnesses.For an appointment by Will to be valid,the Will if made in writing,must be signed by the person making it in the presence of two independent witnesses.If it is an oral Will,it must be made before at least two competent witnesses and is valid for a period of three months from the date of making it.Guardians may act alone or in conjunction with the surviving parent of the child if any.The law recognizes that where a guardian acts in conjunction with a surviving parent it is likely that conflicts may arise and these may be resolved by making an application to the court for their determination.The court may appoint a guardian if it is considered a surviving parent or the appointed guardian unfit to have legal custody of the child.It is important to note that unless there are exceptional circumstances,the court will only appoint a sole guardian of a child if he/she is a relative of the child.

Revoking appointment.

The parent appointing the guardian may revoke the appointment.Similarly,a person who is appointed a guardian may disclaim his interest within a reasonable time of his knowing that the appointment has taken effect.The surviving parent himself may bring an end,at anytime,to the appointment of a guardian upon application to the court.Finally.a guardian acts as such up to the child's eighteenth birthday.Without caring relatives,children are often left caring for themselves prematurely,upon the demise of either or both of their parents.In making a decision to appoint a guardian for our children we will be catering for their best interests,when we are gone.

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