Appointing a Legal Guardian for your Child in Your Will
When you are estate planning, one of the most critical decisions you will make is appointing a legal guardian for your child in your will.
Should the unthinkable happen, and both you and your partner pass away, it is precious peace of mind knowing your children will have a guardian you trust.
What is A Legal Guardian for your Child?
In estate planning, a legal guardian is a trusted adult who is designated to look after minor children should both their parents die.
When you appoint a legal guardian in your will, they will be your child’s primary carer until your child or children turn 18. The guardian is responsible for making decisions in the best interests of the child concerning their wellbeing, maintenance and development.
The legal guardian who takes care of your children will essentially take over your role as a parent and will need to make choices about how to best care for your child.
These may include:
- Everyday care of the children, including housing, feeding and disciplining
- Making decisions about the children’s upbringing relating to education, healthcare and spiritual practices
- In most cases, the appointed guardian will also act as a trustee for any assets and property left for the children in the deceased parent’s estate. As a trustee, it is the guardian’s responsibility to protect the assets under the estate until the children reach the age that their parents decided was appropriate for them to take control of the assets.
What is the process of appointing a legal guardian for your child?
The process of appointing a legal guardian for your child if something happens to you and your partner is one of the most significant decisions you will make in your life.
Parents should sit down together and make a shortlist of people they agree could make suitable guardians for their children until they reach the age of 18 years.
In making a shortlist, there are several things to consider, such as:
- The age and maturity level of the guardian. While family members may seem like an obvious choice, this is not always the case. While an Aunt or Uncle may be great fun and love your children very much. However, if they are still quite young and have no children of their own, they may not have the required maturity to make responsible choices about your child’s upbringing on a long-term basis. Conversely, while Grandparents dote on their grandchildren, they are likely at a stage in their life where they don’t have the required energy it takes to raise a child. This is even more so the case if your children are still young or have special needs of any sort.
- The location of the proposed guardian. If you pass away, your children will have enough to deal with without the emotional upheaval of having to move away from their friends, family and support network. Ideally, the guardian will live close enough that your child can continue to be educated at their current school, play in the same sporting teams and, if you are religious, attend the same religious facility.
- The moral, philosophical and spiritual beliefs of the guardian. You may have very clear ideas about the values you want your child to grow up with. Will the guardian be able to uphold your wishes, or will their moral or religious views inhibit their ability to instil these values in your child?
- The family situation of the guardian. Do they already have children and if so, how will your child fit into their family dynamic? You may consider it to be a support for your child to have a large family you may prefer for them to go to someone who can focus solely on your child’s upbringing.
- Once you have made a shortlist of potential guardians, you should then sit down with each person and discuss how they feel about taking on the responsibility of caring for your child. You may find that in having these conversations, the ideal guardian becomes obvious to you.
What if Only One Parent Dies?
Appointing a legal guardian for your child may not be relevant if only one parent dies.
Care of the children does not necessarily go to the legal guardian named in the deceased parent’s will.
If the children’s parents were separated or divorced before the parent’s death, a family law order might have been arranged through the family court which specifies who the children will live with.
A family law order of this nature will override any contradictory wishes in the deceased’s will.
If there is no family law order in place, the surviving parent doesn’t automatically get custody of the children.
Nor does the legal guardian named in the dead parent’s will get automatic custody.
In fact, without a family law order of this nature in place, who becomes the legal guardian in such cases is anything but clear-cut.
Any interested party who is a significant person in the child’s life can apply to have the court create a parenting order that names them as the legal guardian. This could be an aunt, grandparent or even a step-parent.
While this may seem unfair, in family law, any decision made around the care of a child is based on what is deemed to be in their best interests.
Parents should discuss who they want to care for their children should one or both of them pass away. They should then seek legal advice from an experienced family lawyer to create a family law order and legally binding wills that clearly state their wishes.
Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.