The law helps you to protect your children even in death

By Judy Thongori

Friends, gone is the dream that we shall die while dozing off old age in the African sunshine outside our homes.

Death is visiting us earlier and in alarming numbers. If you look at the last week alone, scores have died through road accidents, terrorism and illegal brews.

Parents of minor children: Who would take care of your children if you died? Mums don’t cry at the thought of death as it is inevitable; what should make you cry is the thought that if you died now, your relatives would move your babies from one relative to another as they try to figure out who is best suited to live with them.

Even for the married mum, your relatives will wonder whether dad will cope and will probably end up   taking the children to the grandmother or bringing in somebody to help. But perhaps you knew that dad could cope but you died with the secret.

For the mum who does  not live with the child’s  father, perhaps you know that the father can handle the children alone but again you did not tell anyone. Dads, let people know your wishes; who should be a guardian while you are gone? Or are you satisfied that mum will do just fine? Why don’t you let your people know so they support the mum rather than imagine what you would have wanted?

The Children’s Act at section 104 and 105 provide as follows:

i) That either parent of a child may, by will or deed, appoint any person to be the guardian of the child after that parent’s death.

ii)   Any appointment of a guardian shall not have effect unless:

a) In the case of an appointment by deed, the deed is dated and is signed by the person making the appointment and in the presence of two witnesses;

b) In the case of an appointment made by a written Will, it is made, executed and attested in accordance with the provisions of the Law of Succession Act.

ii) A guardian  shall act jointly with the surviving parent of the child as long as that parent remains alive, unless the parent objects to his so acting.

iv) If the surviving parent objects to such joint guardianship, or if the guardian appointed considers that the parent is unfit to have legal custody of the child, the guardian or parent of the child may apply to the court which may:-

a) Refuse to make any order in which case the parent shall remain the sole guardian; or make an order that the guardian shall act jointly with the parent; or

b) Make an order that the guardian shall act jointly with the parent; or

c) Make an order appointing a relative of the child or a person who is willing to so act, a guardian of the child, to act jointly with the parent or guardian or both of them; or

d) Make an order that the guardian shall be the sole guardian of the child, in which case the court shall make such order regarding the custody of the child and the rights of contact thereto of his parent and relatives, having regard to the welfare of the child as it may think fit, and further order that the parent shall pay the guardian a financial provision towards the maintenance of the child having regard to the means of the parent, as the court may consider reasonable:

The court shall not appoint the guardian, sole guardian for the child if he is not a relative of the child, unless exceptional circumstances exist with regard to the welfare of the child.

v) Where guardians are appointed by both parents, the guardians so appointed shall, after the death of the surviving parent, act jointly. The court may appoint a guardian in the following circumstances;

(a) On the application of any individual, where the child’s parents are no longer living, or cannot be found and the child has no guardian and no other person having parental responsibility for him;

(b) On the application of any individual, where the child is a displaced child.

Mums and Dads, please write Wills and let people  know  the guardian that you would choose for your children. For death is an eventuality we live with and no one knows the day or the hour the Grim Reaper will strike.

The writer is a family lawyer