Why is an independent trustee important?

cm_11_a1A well-known court case, Land Bank of South Africa vs JL Parker and Two Others (the Parker case) irrevocably changed the requirements for independent trustees to be appointed and placed renewed focus on the duties and responsibilities of all trustees.

What is an independent trustee?
.

As a result of the Parker case, most Masters of the High Court now require an independent trustee to be appointed in addition to the trustees who are beneficiaries of the trust, and therefore, will not issue a Letter of Appointment without at least one independent trustee being appointed. An independent trustee will be a person who is not related to the founder, the other trustees or the beneficiaries.

This independent trustee does not necessarily have to be a professional person but it must be someone who fully realises the responsibilities he or she is accepting when agreeing to act as a trustee. They should also be qualified in the view of the Master of the High Court to act as a trustee.

Responsibilities

All trustees (independent or not) are charged with the responsibility to ensure that the trust functions properly to the greatest benefit of the beneficiaries. These responsibilities include, but are not limited to:

1. ensuring compliance with the provisions of the trust deed;
2. ensuring compliance with all statutory requirements;
3. conducting of proper trustee meetings;
4. recording of proper minutes of all meetings and decisions by the trustees;
5. proper maintenance and safekeeping of minute books.

It is clear that a person who is appointed as an independent trustee must have the necessary experience and expertise to properly execute these duties as well as to add value to the trust. In many cases, the trustees who are not independent do not have sufficient knowledge of and experience in the proper administration of trusts. Furthermore, they might also lack expertise in utilising the vehicle of the trust in order to maximise the benefit for the beneficiaries.

The expertise includes negotiating and entering into business contracts, holistic tax and succession planning, and ensuring the optimal growth of the trust assets. It is in the best interest of the trust that this person also has sufficient knowledge of the impact of statutory requirements, such as compliance with relevant tax law and the effect of changes in legislation on the trust.

All trustees assume significant responsibility when accepting an appointment as a trustee and careful consideration must be given before accepting such an appointment. Any breach of fiduciary duties by any trustee, including the independent trustee, will result in significant exposure for the trustees. Furthermore, any action taken by the trustees on behalf of the trust while the proper number of trustees is not appointed by the Master of the High Court will be null and void.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

When must you consult the Family Advocate?

cm_11_a2You may consult the Family Advocate if you have a dispute relating to either the best interests of a child and/or parental responsibilities and rights. Other circumstances under which the family advocate may be consulted include:

1..When parties require assistance in drafting parental responsibilities and rights agreements and to register such with the Family Advocate or to amend, and/or terminate the said agreements registered with him or her.

2. When parties require assistance in drafting parenting plans and to amend or terminate such parenting plans registered with him or her.

3. An application to define contact.

4. A custody, access or guardianship dispute arising from the dissolution of a customary or religious marriage.

5. Domestic Violence and Maintenance cases referred to the Family Advocate in terms of the Judicial Matters Second Amendment Act (Act 55 of 2003).

6. Fathers of children born out of wedlock may request mediation of their parental rights and responsibilities (in terms of the Children’s Act).

7. Parental child abduction to and from South Africa.

If there is a dispute regarding the contact, guardianship or care (parental responsibilities and rights) of a minor child, the Office of the Family Advocate would be requested to investigate the welfare and best interest of the minor child involved. Often, they provide a report which is handed to the relevant Court for consideration. The Office of the Family Advocate is not employed by the parties involved. They work for the State ensuring that they are objective in their investigation and only have the child’s best interests at heart.

Steps involved

1. Contact your nearest Family Advocate to request an enquiry or, mediation of your legal dispute.

2. Upon receipt of the request, the Family Advocate institutes an inquiry during which he or she interviews you and the parties involved to determine your personal circumstances and the background of the matter. Where mediation is requested the Family Advocate will be the mediator.

3. The Family Counsellor then interviews the children separately, so as to enable such children to exercise their statutory right to be heard and to enable the Family Advocate to convey their views to the Court.

4. The Family Advocate will communicate whatever decision taken, which significantly affects the welfare of the child, to such child.

5. Upon completion of the enquiry or mediation process the Family Advocate will file a report for the Court and furnish copies to the parties or their lawyers.

In a typical custody dispute, a Family Advocate and social worker would be appointed to a case and investigate it. The social worker and the Family Advocate would consult with the parents (or parties involved in the dispute), visit their homes if necessary and obtain information from relevant parties etc. The Family Advocate and social worker would also speak to the child and may want to observe the child’s interaction with the parents. If there are other professionals, for example, a social worker or a psychologist who assessed the situation and provided a report, the Office of the Family Advocate would consider those documents as well and even consult with those experts before handing in their report.

References:

  • http://www.ourlawyer.co.za/family_advocate_cape_town.htm
  • http://www.justice.gov.za/services/consult-fam-adv.html

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

What to do after a car accident?

cm_11_a3If a driver of a vehicle, at the time when the vehicle is involved in or contributes to any accident in which any person is killed or injured or suffers damage in respect of any property, including a vehicle, or animal, must report the accident to a police or traffic officer at the scene of the accident as soon as possible, unless he or she is incapable of doing so by reason of injuries sustained by him or her in the accident. In the case where a person is killed or injured, it must be within 24 hours after the occurrence of the accident, or in any other case on the first working day after the accident.

What must a person do after a motor vehicle accident (“accident”)?

1. Call the police or report the accident at the nearest police station within 24 hours if a person is killed or injured; or on the first working day after the accident if no person was killed or injured.

2. Write down the name of the police officer spoken to and the accident report’s reference number.

3. Co-operate with all emergency personnel and police who respond to the accident.

4. Get the details of all other motor vehicles involved in the accident, such as the driver’s names, identity numbers, addresses, telephone numbers, description of the motor vehicles, the registration numbers, and any relevant details from the licence discs; the date, time and address of the accident; the weather and road conditions when the accident occurred; and any other information that may be relevant.

5. If an employee is driving a motor vehicle on behalf of his/her employer, then the details of the driver and the employer must be taken.

6. Write down the names, addresses, and phone numbers of all potential witnesses of the accident.

7. Take photographs or a video of the following: the scene of the accident, from all angles; the surrounding area; the injuries; and any damage to property.

8. Draw a sketch plan of the scene of the accident and make sure that it contains a fixed point so that it can easily be traced. Also make a statement about how the accident happened. This sketch and statement will remind a person of all the details relating to the accident at a later stage.

9. If a person has been injured, a doctor must be consulted immediately, even if the injury is not serious.

10. If the person is insured, that person has to notify his/her insurance or broker as soon as possible. Write down the name of the person spoken to at the insurance and the reference number of the claim.

What must a person NOT do after an accident?

1. Move his/her motor vehicle; unless it is necessary for safety or required by law.

2. Subject himself/herself to further injury by standing or waiting in an area near traffic or other safety hazards.

3. Leave the scene of an accident until the police tell him/her to do so.

4. Throw away any potential evidence, such as defective products, important documents, or torn or blood-stained clothing.

5. Engage in discussions of fault with anyone as that can be considered evidence in court – do not admit liability.

6. Agree to settlement terms without discussing the matter with an attorney.

Although involvement in a motor accident is always a traumatic experience, try to remember that nearly all accidents have legal consequences. For instance, a criminal charge of driving without a licence, drunken driving or culpable homicide may follow. Civil consequences may include claims for damage to property, or for personal injury, and may arise whether there is a criminal charge or not.

References:

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Getting child contact for divorced parents

cm_11_a4Contact refers to maintaining a personal relationship with a child. It entitles a person to see, spend time with (visit or be visited) or communicate (through post, by telephone or any form of electronic communication) with a child who does not live with that person. The child’s parent/s or a person other than the child’s parent/s (such as grandparent) can obtain the right to contact a child, provided that the contact would serve in the child’s best interests.

What will the court consider when granting an order in respect of contact?

1. The best interests of the child.

2. The nature of the personal relationship between the child and his/her parent/s.

3. The degree of commitment the parent/s has shown towards the child.

4. The extent to which the parent/s has contributed towards the expenses in connection with the birth and maintenance of the child.

5. The likely effect on the child of any change in the child’s circumstances, including the effect of being separated from the parent/s or brothers/sisters with whom the child has been living.

6. Any family violence involving the child or a family member of the child.

7. The need to protect the child from any physical or psychological harm that may be caused by subjecting or exposing the child to maltreatment, abuse, neglect, degradation, violence or harmful behaviour.

8. The child’s age, maturity, stage of development, gender, background and relevant characteristics of the child.

9. Any disability that a child may have and any chronic illness from which a child may suffer from.

A parenting plan will contain a clause setting out the reasonable contact that the parent of alternate residence shall have with the child during term time and school holidays, taking into account the child’s social, school and extra-mural activities.

There are an infinite number of possibilities available when drawing up a parenting plan. Jobs, schools and a variety of other factors must still be taken into account. The bottom line is to find a plan that works for the whole family.

References:

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)