Guardianship of Children


If you die leaving no surviving parent, your children need a guardian.  A guardian is the person you choose to look after your children.  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 usually 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.


Should I select a couple?

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?

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

I don’t know who to choose…

Many of our clients are often faced with 1 of 2 problems.  Either:

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

That is where we come in.  We can talk you though the scenarios and assist you in understanding factors that should be considered when selecting your guardian.

Your parents or mine?

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 you 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.

Case Study

Our Principal Lawyer, Adelle Jones, presents her own personal real life case study of how she told the guardians of her child they had chosen them: No Promise of Tomorrow .  The take away from her story is, do not put off the conversation. Choose well and tell them now.

You can always Book a FREE Chat with one of our lawyers to discuss your Estate Planning needs; OR

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

Book a Free Chat
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