In the ambit of Section 102 of the Children’s Act No. 8 of 2001, a guardian is as a person appointed either by will or deed by a parent of the child or by an order of the court to assume parental responsibility for the child upon the death of the parent of the child either alone or in conjunction with the surviving parent of the child or the father of a child born out of wedlock who has acquired parental responsibility for the child.
Parental Responsibility is explained by the Children’s Act as all the duties, rights and authority by which the law accords to a parent of a child in relation to the child and the child’s property. The guardian can be any person and need not be a citizen or a resident of the Republic of Kenya. Furthermore, the guardian can be appointed in respect of any child who is resident in Kenya whether or not the child was born in Kenya.
A guardianship agreement is a legal document that is used to transfer the legal responsibility and care of a child to another party. The guardianship agreement appointing the guardian must be signed and dated by the person appointing the guardians and witnessed by two other people declaring the appointment of a guardian.
Guardianship is however, not equivalent to and should not be confused with custody of a child. Custody is expounded under Section 81 of the Children’s Act to mean the physical possession of the child. It has been previously noted that although anyone with custody of a child is a guardian not all guardians have custody.
Guardianship can be awarded both by courts and people with parental responsibility whereas custody can only be granted by the courts. Custody can be awarded to either the Parent, the guardian or any other person who applies to the court for custody but has had actual custody for three months before the application with condition of the parent or the guardian.
The guardian does not need to have custody of the child. He or she may be appointed whether in respect of the child or the Child’s Estate or both. In the case that the guardian is appointed in respect of the Child’s Estate, the guardian possesses:
- The power to manage the estate of the child in his own name for the benefit of the child
- The duty to safeguard the child’s estate from loss or damage
- To produce the accounts in respect of the child’s estate to the parent or custodian as the court may direct.
The guardianship agreement terminates when the child attains the age of eighteen years unless exceptional circumstances exist that will make the court consider and extension of the appointment such as a mental or physical disability incapacitating the person from maintaining themselves or managing their property. However, the appointment may also be terminated by an order of the court at any time considering the application for the termination by a parent or a guardian of the child, the child concerned or a relative of the child. The guardianship can also be terminated when the court considers that it should be brought to an end even though no application has been made.
Each guardianship agreement is unique in itself as it varies on a case-to-case basis. Nonetheless, there are key constituents of Guardianship Agreements that recurringly occur in every agreement.
- Parties to the Agreement
The parties to every guardianship agreement must be defined within the document. This will include the name of the child or the adult in need of the guardianship, the names of the parents or current guardians and the name or names of the suggested guardians.
The agreement should indicate how long the arrangement is to last. Whether it be a temporary or emergency guardianship or a permanent guardianship. A guardianship agreement terminates when the child attains the age of 18 years except for special circumstances such as the mental or physical incapacity of the beneficiary of the arrangement. The agreement should clearly outline the duration the arrangement is expected to occur and the possibilities for its extension.
- Purpose of the Guardianship
The agreement should have to clearly stipulate the specific purpose that the guardianship is required to fulfil. This should also include whether the guardianship pertains to the child alone or the child’s estate or both the child and the estate of the child. This section of the agreement is for the avoidance of doubt and to ensure the purpose of the agreement is particularly met in the best interest of the child.
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