Guardianship in Malaysia is governed by the Guardianship of Infant Act 1961 (GIA).
Under the GIA, “guardianship” means having custody of a child and being responsible for the child’s support, health, and education. The guardian also has control and management of the child’s property.
In short, a guardian can be defined as a person with legal rights and responsibilities toward a child.
A guardian’s duties
A guardian has parental rights and duties over the child and will make decisions about the child’s long-term welfare.
The guardian has a duty to act with such care as a man of ordinary prudence would exercise when dealing with his own property. The guardian may do whatever is reasonable and proper for the protection and realisation of the child’s property.
Who can be guardians of a child?
Under section 5 of the GIA, the biological mother and father have equal guardianship rights over their children. This applies whether the parents are married or not.
However, the court remains the ultimate parent of all children in Malaysia. This means that the court has the power to appoint and control guardians of infants.
(The GIA defines “infants” as any child who has not attained majority.)
What happens in cases of separation or divorce?
Separation per se does not affect the equal rights of the parents. If there is a marriage, the Law Reform (Marriage and Divorce) Act 1976 provides that either parent can approach the court to make orders regarding their rights and obligations in relation to the children.
The court may order joint guardianship or sole guardianship to either of the parents. In exceptional circumstances, the court may grant guardianship to a third party if the parents are incapable of looking after the child.
There is often confusion between guardianship and custody of children. The court may make orders regarding who gets guardianship, custody, care, and control of the children. It might be given to one parent or shared between both parents.
What is the difference between guardianship and custody?
In most cases, the guardian will also have custody of the child. Custody usually means the actual care, control, and access to the child. It means the child lives with that person, and that person makes decisions regarding the child’s upbringing, education, and welfare. The person is responsible for raising the child.
At first glance, it might seem that custody is the same as guardianship. A guardian is generally regarded as a person with parental rights and duties who has the final say in decisions regarding the child’s long-term welfare.
In legal terms, however, guardianship is seen as “broader” than custody. Custody refers to the care, control, and access to the child, whilst guardianship includes custody and the management of the child’s property.
In a divorce, the Law Reform (Marriage and Divorce) Act 1976 grants the court the authority to make orders regarding guardianship and custody that are in the child’s best interest.
The court can order that the custody of the child is given to one parent who is responsible for the daily care and control of the child, whilst guardianship is given to another person/parent who has the authority to make significant decisions regarding the child’s welfare.
Power of a parent to appoint a testamentary guardian
Sec 7 of the GIA provides that any parent may (by deed or will) appoint a person to act as guardian for the child after the parent’s death.
A relative of the child may also apply to the court for legal guardianship and custody of the child.
What happens if the child’s biological parents have passed away?
On the death of a parent, the surviving parent can become the child’s sole guardian. However, if the deceased parent appointed a guardian, the surviving parent and such an appointee will be joint guardians.
The court may also, if it thinks fit, appoint a guardian jointly with the surviving parent if:
- the deceased did not appoint a guardian; or
- the appointee refuses to act as guardian or passes away.
If the surviving parent objects to the appointed guardian, the parent may apply to the court for an order that the parent remains the sole guardian.
If the appointed guardian considers the surviving parent unfit to have custody of the child, the guardian may apply to the court to have sole guardianship over the child.
What orders can the court make?
When considering these applications, the child’s welfare is paramount. The court may refuse to make any orders, in which case the surviving parent remains the child’s sole guardian.
- If the court orders that the appointed guardian must be the child’s sole guardian, the court may make orders regarding the child’s custody and the surviving parent’s right of access to the child.
- Suppose the court appointed a joint guardian with the surviving parent and the surviving parent passes away. In that case, the appointed guardian shall remain the child’s guardian after the surviving parent’s death.
- If the surviving parent appointed a guardian, that guardian should act jointly with the court-appointed guardian.
If both the child’s parents passed away and no guardian was appointed, a relative may apply to the court to obtain guardianship and custody of the child.
Guardian of orphans
If both parents of the child have died without appointing a guardian, in that case, the court shall appoint a guardian for the child’s person and property.
The Protector (a representative of Social Welfare) will act as the child’s temporary guardian if the child has no parents or suitable person willing and able to take care of the child.
Statutory limitations on the guardian’s powers
Under sec 15, a guardian of a child’s property may not, without leave of the court:
- Sell, charge, mortgage, exchange, or part with the possession of any of the movable or immovable property of the infant in any way.
- Lease any land belonging to the child for more than one year.
- Discharge any legacy or capital money payable to the infant.
The court’s authority over guardians
Sec 9 of the GIA grants the court the power to define, restrict, or extend the power of a guardian of the child’s property. The court will do whatever is necessary for the welfare of the child.
Sec 10 grants the court the power to remove any guardian at any time, whether a parent or otherwise, and whether of the person or the property of the child.
What happens if joint guardians can’t agree?
If the guardians can’t agree on issues affecting the welfare of the child, any of the guardians can approach the court for direction.
The court may under sec 19A:
- Make orders regarding the custody of the child or the right of access of the parents as the court thinks fit.
- Order the parents to pay periodical sums towards the maintenance or education of the child as the court may consider reasonable. The court will have regard to the means of each parent.
- Vary or discharge orders previously made under this section.
How will the court decide on guardianship issues?
When exercising its powers under the GIA, the court will consider the parents’ wishes (if there are surviving parents). However, the welfare of the child remains paramount.
A guardian has significant responsibilities and rights over a child’s person and property.
If you haven’t appointed people that you trust to look after your children and their property if you pass away, you should speak to a lawyer as soon as possible.
It is crucial that you appoint the right person(s) to have custody of your children and be responsible for their support, health, and education. And someone who can manage and protect their property.
An experienced lawyer will assist you in taking the necessary steps to appoint a person you trust to take care of your children and their property until they come of age.