Guardianship of Children

Guiding you through the emotional topic of who to select to be your children’s guardians

What is a Guardian?

A guardian is the person you choose to look after your children in the event of your death.

If you die leaving no surviving parent, your children need a guardian. This person is usually a close family member or a friend that has a close connection with your child and maybe also has a child or children of their own.

Generally, a guardian will take your children into their own home and care for them as their own until the children reach the age of 18 years. And often far beyond this.

In many cases the appointed guardian also looks after the funds that are set aside for your children. However, sometimes they just work closely with the Executor to access the funds so that they can use the money for the childrens’ everyday care, living expenses, schooling etc.

It is a common drafting mistake made in many Wills that both people in a couple are nominated as guardians instead of just the blood relative or the one party that you really meant to be the guardian.

More often than not, our clients say “I want to appoint my brother Andrew and his wife Simone to be the guardian of our child”. Our reaction is always “are you sure you want to appoint his wife?”.

After the initial expression of horror on their faces, we then explain that if Andrew and Simone get divorced or one of them dies, you need to be content with the idea that Simone might get custody of your children. Do you really mean for Simone to be the guardian of your child if your brother dies?

Many of our clients are often faced with 1 of 2 problems and this is where we come in. We can talk you through the scenarios and assist you in understanding factors that should be considered when selecting your guardian.

  1. You are torn between your family and your in-laws; OR
  2. There is no clear option.

Some couples are very blessed and fortunate that there is a clear front-runner when it comes to who they would wish to be their child’s guardian if the unthinkable happened.

It is common for conferences to come to a grinding halt when the question is asked of a couple ‘who should the guardian of your children be”? We can help you mediate your differences of opinion here. Sometimes it is as simple as “who does the child have a more meaningful relationship with’. Sometimes the more appropriate party is the person that lives in Australia so that the child doesn’t feel displaced by having to move to other country if both parents die. Try not to overthink it. If your child has a loving relationship with your sister and brother-in-law then maybe they are a more appropriate choice than your parents who are already in their 70’s.

How can Haven Legal Co help?

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.

Book a FREE Chat

You can Book a Free Chat with one of our lawyers to discuss your Estate Planning needs

OR

Complete Will Instruction

You can complete your will instructions through our website and we will be in touch with you to book your conference within 24 hours.

Other common questions relating to guardianship of children

What happens to my children if only one parent passes away?

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.

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).

Other Wills & Estate Legal Services We Offer

I have lost count of how many times I sat down to write this blog. I have a problem you

A common question that arises from Executors and Beneficiaries when someone dies in Australia is “when does the reading of

What is an Enduring Power of Attorney? An enduring power of attorney is a legal document. It allows you to

Start your Will and
Estate Planning online

Haven Legal Co’s online Estate Planning assistant is a confidential tool that allows you to get started online, in your own time and space. It will ask you a series of questions, and provide valuable feedback.