Who will look after your children when you are gone?

By Annalyse Betts and Lee Usher-Clarke

Do you have children under the age of eighteen? Who will look after them if you were to pass away?

Appointing a guardian for your minor children if you pass away is an important part of your estate plan. A guardian is someone who will look after your minor child or children on a day to day basis and make long term decisions about their care, development and welfare

If you do not have a Will that appoints a guardian for your minor children, you will not have any input about who will raise your children if you pass away. This decision would be left to the Family Court and would be based on who is willing to apply for guardianship. This can lead to disputes between family members about who will care for your children.

Choosing a Testamentary Guardian

Some of the most important considerations that you should take into account when choosing a guardian are:

The relationship between the proposed guardian and the child;
It is important that the child can maintain a healthy and happy relationship with the proposed guardian as they will be living with and essentially raising the child.
The location and current living arrangements of the proposed guardian;
If your proposed guardian resides in a different state, you may not wish for your child to move away from their school, friends and activities. It may be more realistic to choose someone who lives close by to your child.
The proposed guardian’s age and capacity to look after children;
Depending on the age of your children, it may not be reasonable to expect an elderly couple to look after them. Similarly, if your proposed guardian is of ill health, they may not be able to provide the level of care required to raise your children.
Costs which may be imposed; and
Is your prosed guardian financially stable to look after children? Have you discussed the possible costs which may be imposed on them should they be required to become a guardian?
Their willingness to carry out the job
Before appointing a guardian in your Will, you should ensure that you have discussed the appointment with your guardian and that they are willing to carry out the job. It is also important to discuss your wishes relating to the care of your child and ensure that your chosen guardian has similar wishes and expectations for the care of your child. This can be particularly important in relation to religious and spiritual expectations.

How to appoint a guardian in your Will

If you wish to appoint a guardian for your minor children you are required to name the person that you have chosen in your Will. You may also wish to appoint a substitute or backup guardian if your initial choice of guardian is not available to carry out the job.

When you appoint a guardian in your Will you will also need to consider carefully who you wish to be in control of any funds left to your child or children in your Will. Usually any bequest left to your child or children would be held on trust for them by the executor of your Will until they reach the vesting age which is generally 18 years of age

It is possible for you to choose the same executor and guardian if you have sufficient trust in them. However, it is preferable to choose separate people for these two jobs or to have a co-executor to ensure there is an independent person involved in the expenditure of the children’s inheritance.  

Family Law Proceedings

Whilst a guardianship clause in your Will is a necessity if you have minor children, it is important to remember that the ultimate decision about who is appointed as guardian could be made by the Family Court.

If another interested party makes an application for guardianship after your death, the Family Court would be required to make a decision about who is the most appropriate person to be appointed guardian. For more information regarding children and family law proceedings please see Family Law Disputes Involving Children .

Although it is an important part of your estate plan, choosing someone to look after your children when you are gone can be a very difficult and emotional decision to make and many people tend to delay making a Will for this reason. However, talking to one of our lawyers about your concerns and the considerations you should take into account is the best thing you can do to help you through this process and make a decision that you are comfortable with.

For more information of Testamentary Guardianship and preparing your Wills, please do not hesitate to contact our experienced estate planning team.

Elringtons Lawyers |Wills and Estates | 02 6206 1300 | crec@elringtons.com.au