Enrolment of under 18-year-olds

Amendments have been made to provide clarity about who can enrol under 18-year-olds into KiwiSaver.

Background

The KiwiSaver Act 2006 provides that children under 18 years old are not subject to automatic enrolment, and can only opt into KiwiSaver by contracting directly with a provider. Previously there was a lack of clarity on who could contract with a scheme provider on behalf of a child under 18 years old.

A new set of rules provides clarity and certainty on the enrolment of under 18-year-olds in KiwiSaver. These rules provide that children under 16 years can be enrolled only by having all of their legal guardians contracting with a provider. Children aged 16 to 17 will be subject to a transitional rule, which recognises their growing intellectual maturity, by having them co-sign with one of their guardians. It is important that children of this age have some role in their enrolment and the consent process; furthermore, many young people begin working at this age.

Key features

Section 35 of the KiwiSaver Act prescribes how those aged under 18 can enrol in KiwiSaver. The new rules are explained below.

Children under 16 years old

Children under 16 years old may only be enrolled by their legal guardian(s), and may not enrol themselves in KiwiSaver.

Agreement and joint signatures will have to be obtained from all the child's guardians before they can be enrolled in a KiwiSaver scheme. 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.

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.

Children aged 16 or 17

Children aged 16 or 17 who have a legal guardian must co-sign with one of their legal guardians in order to enrol in KiwiSaver. They may not enrol themselves, nor will a legal guardian be able to enrol anyone aged 16 or 17 in KiwiSaver without their consent. One guardian's signature is sufficient, as the 16- or 17-year-old has to co-sign with their guardian to be enrolled.

Children aged 16 or 17 who do not have a legal guardian may opt into KiwiSaver by contracting directly with a scheme provider. This means that children aged 16 or 17 who are married, in a civil union or living with a de facto partner will not need a co-signatory in order to opt into KiwiSaver.

Detailed analysis

Providers must verify guardianship as at the date of enrolment of a child under 18 into KiwiSaver, and, if necessary, on the later exercise of membership-related discretions. For a provider to verify guardianship, or that a child aged 16 or 17 has no legal guardian, the following types of evidence may be used.

Children with a legal guardian(s)

The parents' names as listed on the child's birth certificate are sufficient evidence of guardianship.

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 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 under the age of 18 into their KiwiSaver scheme.

If consent to enrol a child is given by a legal guardian who is not a parent of the child, documentary proof of guardianship is required.

The following original documents should be provided:

• a guardianship order issued by a New Zealand court;
• an additional guardian appointment form approved by a New Zealand court; or
• a copy of the parent's will appointing the person as a testamentary guardian together with the parent's death certificate.

A parenting order is not sufficient for this purpose. A step-parent is not, in a legal sense, a child's guardian unless appointed as a guardian through a court process or under a parent's will.

If the guardians are unable to provide this documentation then a signed statutory declaration from a guardian would be sufficient. Under section 9 of the Oaths and Declarations Act 1957 the persons authorised to take this statutory declaration are:

• a Justice of the Peace
• a person enrolled as a barrister and solicitor of the High Court;
• a registered legal executive (fellow of the NZILE);
• a notary public;
• a registrar or deputy registrar of the High Court or a district court;
• the registrar or a deputy registrar of the Court of Appeal;
• the registrar or a deputy registrar of the Supreme Court;
• a member of Parliament;
• other government officer authorised to take statutory declarations.

Children without a legal guardian

For children aged 16 or 17 who are married or who have entered into a civil union, a copy of their licence will suffice. Alternatively, a statutory declaration for those married or in a civil union will be sufficient.

Exercise of membership-related discretions

Each provider will have their own internal guidelines on what authorisation signatories they will require for the exercise of membership-related discretions when a member who has contracted in is under 18, for example, a change of providers or a change of fund. Members should check with their own provider to find out what rules apply in their circumstances.

In general, for KiwiSaver members under 16 years of age, if a guardian acts as a signatory the signature of only one guardian will be sufficient. The Care of Children Act 2004 requires that, when practicable, all the guardians of a child must be consulted when making decisions about important matters affecting the child. The parent or guardian making the application for the child is responsible for consulting with the other parent or guardians of the child. It is not the responsibility of a provider to ensure that a guardian has consulted with other guardians in this way.

For KiwiSaver members aged 16 or 17, providers may chose to allow membership-related discretions to be exercised by the member, without requiring a guardian's joint signature.

If membership-related discretions are exercised by one of the guardians who initially enrolled a child under 18 into the scheme, providers will simply confirm that they are still the child's guardian. No further documentary checks are required.

However, a child may have a "new" guardian, that is, a guardian appointed since the child's enrolment into the scheme. If membership-related discretions are exercised by the new guardian then providers will need to obtain documentary evidence to confirm the status of that new guardian. This will be the same sort of evidence that is required to prove guardianship at enrolment, as listed above.

Application date

The new rules apply from the date of Royal assent, being 7 September 2010.