Whether you have just welcomed your first child, plan on expanding your family or have teenage children, it is important to consider who would take care of your children should you and your partner both be unexpectedly incapable of doing so.
Although it can be an emotional and confronting thought, one of the main reasons for a parent of a young child or children to make a Will is to document who you intend to take care of your children should both parents be incapable of doing so.
Nominating a ‘guardian’ ensures that your wishes as to who should take legal responsibility for the care and parenting decisions of your children are known, particularly in the event that both parents or carers unexpectedly pass away.
When a parent of a minor child passes away, the Family Court makes a guardianship order based on the best interests of the child. The Court will strongly consider the wishes left in your Will but will ultimately appoint the most appropriate guardian at the time. This reflects the fact that the circumstances of your children or chosen guardian may have changed since you executed your last Will.
If the appointed person accepts the guardianship order, they will take on all of the rights and duties for the child that a parent would normally hold. This often includes the authority to make decisions about accommodation, health care and education.
The guardianship order will only apply for minor children (under 18 years of age) and it will formally end on their 18th birthday, unless the child has a disability that requires an ongoing guardian.
If only one parent passes away, the surviving parent will usually be the legal guardian for your child.
This will be the case unless the surviving parent is unable or unwilling to take on or resume parental responsibility, or the Court decides that living with this parent would not be in the best interests of the child. Such a decision is generally made where it would be an unsafe or unstable environment for your child.
You can nominate anyone to be the preferred guardian of your child or children, as long as they are over 18 years of age and consent to the appointment.
You can choose more than one guardian, such as the children’s grandparents jointly, if you are confident that they will work well together and their shared duties will not have a negative impact on your children.
We recommend that you consider the following when deciding who to nominate:
(a) Similarities in lifestyle, values and religious beliefs;
(b) Who your child already has a bond with;
(c) Whether the prospective guardian has or is planning to have children, and the relative ages of your children and their children;
(d) The potential transition for your child in terms of living environment and location; and
(e) The physical, financial and emotional capacity of the prospective guardian to take on the responsibility of caring for your child/children.
Before nominating a guardian, it is a good idea to discuss your expectations and intentions with the prospective guardian to ensure that they would be happy to take on this role, if necessary. You may wish to share a set of guidelines which sets out your wishes in the event you pass away.
A Guardian should not be required to meet your child’s living expenses from their own funds.
When preparing your Will, we will normally include a direction that your executors should make available to the Guardian such funds as are required to meet the reasonable accommodation, education and other living expenses of your children from your estate, or that the Guardian be reimbursed for expenses relating to the care of your child (to the extent possible).
Usually a statement of wishes will set out guidance for the Guardian in making parenting decisions for your child, such as where you would like your child to live, go to school or how expenses for the child should be paid.
You can either include a statement of wishes in your Will (to ensure it is not missed or neglected) or as a separate document that is kept with your Will (which makes it easier to update over time as your circumstances change).
In the event that there are no written instructions in your Will or a statement of wishes, and both parents pass away, then any person with a sufficient interest can apply for guardianship of your minor children, such as grandparents, aunties and uncles or others close to your children and concerned as to their care.
In such situations, it is up to the Family Court to decide who should become the legal guardian of your minor children without your guidance. This situation is not ideal as the Family Court may appoint a person as guardian who is not the person you would want to raise your children, or may lead to disputes between family members as to who should have been appointed.
It is generally up to an adult child to decide where and with whom they want to live, and make other lifestyle decisions. However, if an adult child lacks decision making capacity due to a mental disability, a Tribunal can make a guardianship order to enable someone to assist the child with their personal matters.
The Tribunal will consider any wishes you leave behind in relation to your preferred guardian and any restrictions or conditions that should be placed on the guardianship order.
Your child is also able to request a different guardian or different conditions if they are unhappy with the guardianship order made by the Tribunal.
Otherwise, there are a few different options available to plan for the care and maintenance of an adult child should you wish to protect the assets they receive from your estate (as opposed to the lifestyle decisions that a Guardian will make).
Our experienced team of succession and family law lawyers can assist you in planning for your children’s care should you and your partner pass away unexpectedly, providing you with peace of mind that you have a detailed plan in place for the future care of your children.