Guardianship of Infants Act

This is the law that governs the guardianship of minor children in the cases when one or both of the minor children’s parents die; a young mother gives up her child to a childless couple etc. This law also addresses the issue of managing the assets meant for the children under guardianship.

The relevant sections of this act applicable to estate planning are:

Section 3: Welfare of infant to be paramount consideration

The court, in making judgements about the guardianship issues, will exercise paramount consideration over the welfare of the child. Neither the father nor the mother of the child has superior claim of guardianship over the child.

Section 4: Equal right of mother to apply to court

The mother of an infant has equal rights with the father to apply to the court in matters affecting the infant.

Section 5: Power of court to make, discharge or amend orders for custody and maintenance of infants

The court may make orders, as it deems fit, regarding the right of access and the payment of any sum towards the maintenance of the infant on the application by the parents or guardian appointed under this Act.

Section 6: Rights of surviving parent as to guardianship

On the death of the father of an infant, the surviving mother, subject to the provisions of this Act, shall be guardian of the infant, either alone or jointly with any guardian appointed by the father. The legal position is the same if the mother dies, and the husband is the surviving parent.

Section 7: Power of father and mother to appoint testamentary guardians

The father and mother of an infant may appoint any person to be guardian of the infant after his (her) death. The appointment can be done by a deed or will.

Section 9: Enforcement of orders for payment of money

The court has the power to access the pension or income payable to a person against whom the order was made, and give this sum to the guardian of the infant as payment.

Section 10: Removal of guardian

The court or a judge may remove the guardian and appoint another guardian in his place.

Section 12: Variation of trust for maintenance of infant

If a guardian is being removed by order of the court, and another guardian is being appointed in his place; the court may order the whole or any part of the sum payable under the trust to be paid to the new guardian.

Section 15: Security to be given

When a person is appointed by the court as the guardian of an infant’s property, he shall, unless the judge otherwise orders, give security in such sum as may be appointed for the due performance of his duties as a guardian.

Section 16: Limitation of guardian’s powers

A guardian of the property of an infant shall not, without the leave of the court or a judge –

• Sell, mortgage, exchange, or otherwise part with the possession of any of the movable or immovable property of the infant; or
• Lease any land belonging to the infant for a term exceeding one year.
  Any disposal of property in contravention of this section may be declared void, and on such declaration the judge may order the property to be restored back to the infant’s estate.

Section 18: Guardian may support infant out of income

A guardian of the property of an infant may make reasonable provision out of the income of such property for his maintenance and education.

Annex A: GUARDIANSHIP OF INFANTS ACT (CHAPTER 122)