Parents are the natural guardians of their children, but a legal guardian is appointed either by a will, deed, or by the court. A legal guardian looks after children until they reach the age of 21. Most often the guardian is a family member, but not always.

Guardianship isn’t something that springs to most people’s minds until it becomes necessary, which may be too late to influence the decision-making.

The issue of guardianship is sometimes raised when people make a will with a prompt from a lawyer. However, other life events can give rise to the need for a legal guardian for young children.

What is a legal guardian?

The relationship of a guardian applies between an adult and a child.

The adult, who is not usually the child’s parent, assumes responsibility for the child’s welfare and property. They can also make essential decisions on education, healthcare, financial management, and raising the child.

Different types of legal guardianship in Singapore

There are two types of legal guardianship in Singapore:

  1. The first is guardianship of the person, which means a child under the age of 21.
  2. The other type of guardianship is of the estate, which refers to the child’s property (if any) and financial matters.

A guardian appointed under a will may be required to step forward if the child’s parents die before that child reaches 21. With parents pre-deceasing, there could be considerable assets to manage on the child’s behalf in addition to all the usual decisions relating to upbringing, education, and any health issues.

The role of legal guardian

The role of a legal guardian is to manage the child’s life in all key aspects acting very much as a parent would. Decisions must always be made in the best interests of the child.

Parental responsibility refers to parents’ power, duties, and authority regarding their children. Parental responsibility is divided equally between both parents.

A legal guardian assumes the mantle of parental responsibility, and this includes providing a child with:

  • A safe and nurturing environment
  • Emotional support
  • Healthcare
  • Education

Applying to be a legal guardian

Several different steps need to be taken before appointing a legal guardian.

Is guardianship necessary?

A legal guardian can be appointed if a parent or parents have pre-deceased a child, or the parents are living but unable to fulfil their parental responsibility role. This might be because they are dealing with health issues, mental or physical, or something else like an absence due to a prison sentence.

The role of a parent or parents cannot be challenged by another family member applying to the court for legal guardianship unless there is clear evidence the child’s parents are not fulfilling their duties and obligations.

Finding a suitable legal guardian

If the parents have pre-deceased, their will may make provision and identify a testamentary guardian. Alternatively, the court may appoint a legal guardian under the Guardianship of Infants Act (GIA), or a person can apply.

A parent who cannot assume parental responsibility may nominate a suitable guardian.

Documentation requirements

An application for legal guardianship usually includes specific documents:

  • If a parent has died, their death certificate will be required.
  • The birth certificate of the child.
  • The applicant’s legal documents of identity so they can prove who they are.
  • Any relevant court orders or legal documentation already issued regarding the child’s care or custody.
  • If the application is connected to a divorce, the parents’ original marriage certificate.
  • A supporting affidavit, plus any relevant documents which underpin the applicant’s suitability as a legal guardian.

The application

Applications for legal guardianship are made to the Family Court. In addition to the documentation already mentioned, the applicant should provide a written statement explaining why they are applying for guardianship.

Court assessment and approval of the application

The court reviews the completed application. They may decide based on what is in front of them, or the court might request additional information and/or hold interviews with the applicant, other interested parties, and the child in question.

The continuing involvement of the court

An approved legal guardian should expect continuing supervision by the Family Court to ensure that they are carrying out their duties and responsibilities in the correct way, and with the best interests of the child as a priority.

The court may ask for periodic reports on the child’s education and welfare, plus updates on any financial management.

Section 10 of the GIA grants the court the power to remove a guardian and appoint another. The legally appointed guardian could become unfit to look after the child, or there might be evidence of misconduct.

Section 10 also applies if the parents of the child divorce, and neither can take responsibility for the child.

The powers and duties of legal guardianship

The powers and duties of legal guardianship are very much intertwined, as with power comes responsibility.

A legal guardian has the power to make decisions about money and property belonging to the child, their education, and healthcare. They also have a duty to ensure that actions are taken, and decisions made which are in the child’s best interest, even if the guardian holds a different viewpoint or opinion.

Any money or property belonging to the child must be kept wholly separate from a legal guardian’s personal assets.

A guardian’s powers and duties are subject to the scrutiny and supervision of the court. Guardians must act properly, diligently, and responsibly. They can be held accountable for any negligent or dishonest acts.

Choosing a legal guardian

Irrespective of how a guardian is appointed, they must be an adult at least 21 years of age, of sound mind, and financially stable.

If parents are writing their will, the choice of testamentary guardians may be self-evident and straightforward. However, in some cases, there are no obvious candidates. If a will is silent on the subject and it becomes necessary to appoint guardians later, the court will decide.

A testamentary guardian must live with the child; this can be overseas with the court’s permission. However, a testamentary guardian doesn’t have to be a relative of the parent or child. A parent can appoint a close family friend by deed or in their will.

The court and individuals can choose to appoint two legal guardians. Joint guardians must act together, so it’s crucial to select people who are likely to be able to work together and cooperate on most occasions when making decisions.

When appointing a guardian, the type of factors the court considers include:

  • The relationship between the child and guardian.
  • The guardian’s home environment and the ability to provide stable and nurturing surroundings.
  • The preferences of the child if they are old enough to have an opinion.

Final thoughts on guardianship

Providing for young children includes thinking about what happens if either or both parents die or become incapable of looking after them.

Appointing a guardian in a will or by deed allows parents to choose who looks after their children if they die or are incapable. It avoids the court making that decision and the inevitable delays which can mean the children are placed in care.

Becoming a legal guardian is a serious and demanding responsibility. Anyone considering applying should take professional legal advice to ensure they fully understand the nature of what they are taking on.

This content was written and reviewed by a lawyer but it does not constitute legal advice. We always recommend engaging a lawyer before taking any legal action.

Frequently asked questions

In what circumstances is a legal guardian appointed?

A legal guardian is appointed in a will to take care of children in the event of the death of the child’s parents; this is referred to as testamentary guardianship. The court can appoint a legal guardian when a parent or parents cannot care for their children.

What happens if one parent dies, and the remaining parent is unable or unwilling to care for the children?

Usually, if one parent dies, the surviving parent assumes complete control and responsibility for the child’s care and upbringing. However, sometimes, the remaining parent cannot care for the child or doesn’t want to, in which case, a court-appointed guardian can step in to fill the breach.

What happens if joint guardians cannot agree on an important matter?

Appointing joint guardians is tricky, and disagreements are not uncommon. If two guardians cannot agree on a significant decision, they can apply to the court to adjudicate.

Can a non-family member be appointed a legal guardian?

Non-family members can be appointed as the legal guardian of a child if the court considers the applicants suitable and approves their application.

What is a natural guardian?

A natural guardian is the child’s parent as opposed to a legal guardian who is either appointed by the parent’s will (testamentary guardian) or by the court (court-appointed guardian).

What happens if both parents die at the same time and there is no testamentary guardian appointed?

The court can appoint a guardian to look after the child or children, but there can be a delay which means that the children are placed in foster care until this happens.