Estate Planning - Appointing a guardian in a will

Appointing a guardian for your children in your Will

Parents of young children lead busy lives, and preparing a Will can be a confronting exercise. As such, estate planning tends to be avoided or put on the back burner, sometimes until ‘the kids are older’.

However, whilst children are still young it is important to think about who will look after them in the event of the death of one or both parents. This role is known as the Guardian, and typically is one of the hardest decisions parents with young children have to make when preparing their Wills.

What is a Legal Guardian?

With regards to estate planning, a legal guardian is an adult who has been elected to care for a child in the event one or both parents die before that child reaches adulthood. The Guardian will be the child’s primary carer until they turn 18, and will be responsible for their wellbeing, maintenance and development generally. As this person will take on a major responsibility, it is critical that parents have considered the significant influence they will have on their child’s upbringing and have selected someone who is willing and able to take on the role.

Why you should name a Guardian in Your Will

Though it may be difficult to plan for events that are out of our control, preparing a Will ensures that the your wishes regarding your child or children are documented. In doing so, your loved ones are left with direction in how to manage your legal affairs and your intentions are made known.

In the event of the death of both parents, any person with a sufficient interest can apply for the guardianship of minor children if there are no specific instructions in a Will. It is then left to the Family Court to assess and determine who should become the legal guardian of the child based on the best interests of the child. This is not an ideal contingency plan as the Family Court may not choose the guardian who the deceased parents would have chosen, making an already devastating time even more disruptive and costly.

The situation is more complicated if one parent dies, especially for couples who have separated or divorced. Whether or not the surviving parent or the guardian appointed under a Will receives custody of the child depends on a number of factors, including the terms of any parenting orders made or agreed to by the parents.

However, by appointing a legal guardian under a Will, the guardian is entitled to be a part of any proceedings in determining the guardianship of the child, including challenging any parenting order already made. In providing for a guardian, the wishes of the deceased parent are met in relation to the guardianship of their child after their death.

How do you decide who should be your child’s guardian?

Appointing a legal guardian is a very personal decision and one which requires careful consideration. Although no one can love a child like a parent, a guardian who shares closely aligned personal and lifestyle values can provide a child with a supportive and loving home in the event of the unexpected. To help choose this person, the following factors should be considered:

  • Location: Do they live in the same area? If so, this will enable the child remain at the same school and maintain their friendships.
  • Age: Although grandparents may have a special bond with their grandchildren, they may not be at a stage where they can take on the full time emotional, financial and physical responsibilities of raising a young child.
  • Financial stability: Is the guardian financially stable? Will their house accommodate more children? What is the nature of their work and working hours?
  • Personal values: Does the guardian share similar moral values, religious beliefs and views on child raising?
  • Family situation: It is possible to appoint co-guardians but it is generally recommended that an individual is selected instead to avoid potential future complications such as divorce. Does the guardian have children of their own? How old are these children and what is their relationship with your child? Is the guardian considering having more children?
  • Alternative appointment: It is important to note an appointed guardian is not legally obligated to take on the responsibility of guardianship so it is also recommended that another guardian is chosen should this situation arise.

Can the guardian access the child’s share of the estate?

Apart from the selection and appointment of a guardian, it is also necessary to consider the guardian’s access to the child’s share of the estate.

A guardian is responsible for the maintenance and development of a child. However, a Trustee of a deceased estate is responsible for the administration and distribution of the estate assets. Although, it is possible to appoint the same person to both roles, in certain circumstances it is recommended that different individuals are appointed in each role to avoid potential misconduct or conflict of interest.

Generally, the guardian is given access to the child’s share of an estate, and can use this money for the child’s welfare, at the discretion of the trustee who is responsible for distributing capital from the estate in accordance with the the terms of the parents’ Will.

Further Considerations

Any other consideration that a parent would want known to the guardian of their child can be documented in a Memorandum of Wishes, which is a non-binding ‘letter’ that doesn’t form part of their Will, but can be used as a guide to the guardians in relation to the raising of the child.

Though any number of topics can be included in a Memorandum of Wishes, some factors typically referred by parents with a young child include:

  1. The hobbies, interests and disinterests of the child.
  2. The values you would like to be instilled or preserved in the child.
  3. The child’s friends.
  4. Skills the child shows potential in.

As with all estate planning matters, it is important for a parent to discuss these fundamental decisions with their spouse and family, and to review their Will and choice of legal guardian following any major life event.

If you have a young child, no matter your circumstances, having a Will is essential to document your intentions in relation to the guardianship of your child and ensures that your voice can be heard through your appointed guardian regarding your child’s development after your death.

Please contact us for a complimentary consultation to discuss your estate plan or review your existing Will. 

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