Guardianship of children
Wills, Estates & Succession Planning 09 December 2020

Guardianship demystified

Things to know about choosing and appointing a Guardian for your minor children if both you and your partner were no longer around to care for your children.

Why should I appoint a guardian for my child?

The future is not ours to see  and there may  come a time where  you will contemplate the fragility of life and the impact that unforeseen circumstances may have upon your family, prompting you to establish  a contingency plan in case something were to happen to you and your partner before your child turns 18. Consideration of children is an important dimension to Estate Planning and thought needs to be given to who will look after your children in such circumstances, where you as a parent are no longer around to care for your child.

While this may not be a pleasant thought, it is worth taking some active steps to ensure that your wishes for your child are formally documented.  Many parents simply push the thought aside, put it in the “too hard basket” or don’t have a Will prepared. While some can’t bear to think about that daunting possibility or cannot agree on the very difficult decision as to who should be appointed to care for their children when they are no longer around.

Choosing a Guardian for your children below the age of 18 maybe one of the most complicated decisions you will ever make as a parent and no parent would want to think about the possibility of dying while your children are still young, however if you have a young family or you have children who are presently still under the age of 18, or you have a young child with a disability then it is certainly recommended that you should include a Guardianship provisions in your Will.

Appointing a guardian of young children in a Will is personal decision and one which may avoid disputes between family members if the unexpected happens. Upon death of a loved one, grief and feelings of entitlement or obligation may arise amongst family members and close friends. This can make an already overwhelming situation worse for children if no guardian has been appointed and family members start fighting over who are going to take over responsibility and care of the young children.

What is the role of a Guardian for a minor?

Being appointed as a guardian is a big responsibility and a guardian of a minor is a person that has the powers and responsibilities of a parent concerning the day to day care of the child, child’s support, care, education, health, and overall welfare and wellbeing of your child and guardians must at all times act in the child’s best interests until the child turns 18.

Things to consider in choosing a guardian for your child:

To choose the next best person to care for your child is a very tough decision to make as a parent as no one can compare to you as a parent.

In making your choice you may wish to consider the following:

  • Location and any transition your child may need to make. Will your child be able to live in the same area to allow your child to continue to go to the same school and have contact with friends? The uprooting of a child while they are grieving the loss of a parent may have an even bigger and lasting impact upon the child.
  • Potentially selecting someone whom your child may already have a close relationship and bonding with.
  • Practical considerations such as who is best suited to take on the role – keeping in mind factors such as the age of your children and the age of your potential guardian, any physical limitations, financial stability, and suitability in addressing emotional needs of your child.
  • Consider living arrangements – Will the child move in with the guardian or continue to live in the family home?
  • Does your potential guardian have children or planning on having children in the future, if so will your child fit in?
  • Similarities between your lifestyle, values and religious / cultural beliefs

Once you have a list to a few potential individuals, you should have a conversation about how they would feel about being named guardian of your children. Perhaps one person will express a clear desire to play this role while another may not be willing to take on the responsibility. These conversations may reveal feelings and attitudes that will help you make your decision. 

What happens in the event that there is no appointment of Guardianship documented in my Will?

If there are no specific written instructions in a Will and in the event of the death of both parents, any person with sufficient interest such as grandparents, aunties or uncles can apply for guardianship of your children. In such situations, should a dispute arise on who would care for your children then the matter may come before the Family Court to decide who should become the legal guardian based on the best interests of the child.

This is not ideal as the person chosen by the court may not necessarily be the person that you would choose to care for your child. This can be a very costly exercise, both emotionally and financially for all parties involved. By parents making their wishes clear in their Will, it removes any doubt on the issue and alleviates the possibility of disputes arising.

In the event of a death of one parent, the surviving parent will continue to be the legal guardian of the child unless there are circumstances to reflect that this is not in the best interest of the child. Such circumstances may include a restraining order against the surviving parent or child, incidences of domestic violence perpetrated by the surviving parent or a history of drug or alcohol abuse by the surviving parent. If you’re in this situation, you should seek the advice of a professional Estate Planning Lawyer.

How do I appoint a Guardian for my child?

You can formally appoint a guardian for your minor child in your Will and a specific clause is often drafted by your Estate Planning Lawyer to be included in your Will which accurately reflects your intentions.

Your Will may also include a statement of intentions to reflect upon things such as the schools you would prefer for your child to attend, living arrangement, holiday visitations amongst family on both sides,  travel to places of significance just to name a few. This list is often tailored to meet your specific requirements during your consultation with your Lawyer. During your consultation you may also wish to provide for alternative guardians to step in if your first choice is unable or unwilling to take on the role at the time of their death.

It is essential to discuss your intentions, obtain consent and discuss your expectations with the prospective guardian. During this discussion, it’s also a good idea to share the set of statement of intentions that you have prepared with your potential Guardian to ensure that he / she is willing and able to take on the responsibility.

What are the financial implications for the guardian being appointed?

There is generally a standard clause in a person’s Will that gives the trustee the power to advance income and capital for the maintenance, support, education and benefit of a child. A nominated guardian should not suffer any financial burden or loss whilst acting in the role. Practice tends to be that the guardian will have access to the child’s share of the estate, at the discretion of the trustee. Once the child has reached a certain age the trustee may decide to pay funds directly to the child and until such a time, the trustee will usually make payments to the child’s guardian, or directly to the provider of the goods or services. 

It is recommended to have two different individuals acting as executor/trustee of your estate and guardian of your child respectively. The executor/trustee of your estate will be in charge of distributing the money to your child’s guardian in accordance with the terms of your will. The guardian of your child will be responsible for making lifestyle decisions for your child. This seeks to avoid conflicts of interest or any potential misconduct and also acts as a checks and balance in the process to ensure that your child’s best interest is always protected and remains at the centre of all decision making. 

When to review your choice?

Many things may change over time, in some circumstances it may become necessary to review your nomination for guardianship if your appointed guardian has become ill or relocated overseas or interstate, they may have had a change in life events leaving them no longer being able or willing to take on the responsibility or the person you chose to care for your infant child may not be the same person suitable to care for your now teenage children.

It is recommended that every few years you reassess your situation and evaluate your choices in your Will and if you decide to make any changes, communicate your intention to all parties concerned so there are no surprises later, and ensure that these changes are accurately reflected in your Will.

Stefan Manche.
Stefan Manche Principal Lawyer Head of Wills, Estates & Succession Planning View profile
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