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Both parents’ signatures essential unless sole guardian
 
Q.          I am a solo working parent with 2 children aged 6 and 8.  I have seen the benefits of KiwiSaver for myself, and decided to sign up my children.  But when I talked to my bank they said I needed their father’s signature as well.  Now that’s a problem.  He is somewhere in Australia and I don’t know how to contact him.  Is there any way round this?
 
A.            If you had signed your children up to KiwiSaver before September 2010, you could have done so on your signature alone. However, in September 2010 the KiwiSaver Act was amended and now both parents (or all guardians) have to agree and sign the application form for children under 16 joining KiwiSaver for the first time. This reflects the importance of the decision to sign children up to KiwiSaver, as once they are in the Scheme they cannot opt out (although they can apply for a ‘contributions holiday’ once they join the workforce). 
 
One of the legal experts on KiwiSaver in New Zealand is Emma Harding, senior lawyer with Chapman Tripp in Auckland. I asked Emma for her comments on your situation. She replied, “This requirement is consistent with the Care of Children Act 2004, which states that a guardian of a child must act jointly with any other guardians of the child in exercising their duties and responsibilities.  Inland Revenue released guidance at the time of the law change which expressly stated that ‘it should be noted that if parents are separated, whatever the circumstances, both parents continue to be legal guardians unless a Court Order provides otherwise’. Unless the mother obtains a court order under section 29 of the Guardianship Act removing the father as a guardian of the child, then unfortunately his signature is required on the application form before the child can be signed up to a KiwiSaver scheme for the first time. 
 
I realise that this is very unhelpful for your reader and her children, but unfortunately that is the effect of the KiwiSaver Act amendments. I can definitely sympathise with the situation she finds herself in.  I advise a number of KiwiSaver scheme providers in the market and many of the queries we are asked to provide assistance with relate to signing children up to a KiwiSaver scheme.”
 
A child’s guardians help to make important decisions in a child’s life such as their schooling, medical treatment, religion and culture, generally until they reach the age of 18. According to the Care of Children Act 2004, a child’s father and mother are usually joint guardians. In some situations only the mother’s name appears on the birth certificate and in that situation she is usually the child’s single guardian. 
What if one parent is deceased? Emma Harding provided these comments “If both parents are named on the birth certificate but one parent is deceased, the surviving parent will, in most cases, be the sole guardian.  In this situation, Inland Revenue guidance states that ‘a written confirmation from the remaining parent confirming that they are the sole guardian will be considered to be sufficient evidence.  This should also confirm that there are no other testamentary or court-appointed guardians.  Providers retain the discretion to require further documentation, including a copy of a parent’s death certificate or will, if they wish to carry out further checks before choosing to accept a child into their KiwiSaver scheme.’ ”
 
Unfortunately, under current law, you have limited options if you are unable to get the father’s signature. Either you will need to take legal steps to become sole guardian of your children, or you will have to wait until your children turn 16 before they can join KiwiSaver, as only one parent’s signature is required for children aged 16 and 17.
 
 
Shelley Hanna is an Authorised Financial Adviser FSP12241. Her disclosure statement is available on request and free of charge by calling 870 3838. The information contained in this article is of a general nature and is not intended to provide personalised advice. Send your KiwiSaver questions to shelley.hanna@peak.net.nz. You can read earlier columns at www.peak.net.nz