One of the most difficult decisions parents face, is who would look after your precious babies if you were not around. But if something were to happen to you and your partner, you’d want to ensure your children were in the best hands. Failing to do so could mean the courts will choose a legal guardian for your children and it may not be who you think is best. In this article we share how to choose a guardian for your children and how to make it legal.
How to choose a guardian for your children
Many parents find it emotionally difficult choosing a guardian for their children. To help, we’ve come up with a list of questions to consider. This should provide some structure to the decision making process, helping to mitigate emotion so you can think more clearly.
Create a shortlist of possible guardians, go through the quesitons below and write points for and against each one. Select your preferred guardian, then make a backup selection in case the first person is unable to take on the responsibility.
Questions to consider when choosing a guardian for your children
- Is there a mutual bond, comfort and respect between them and your children?
- If you have more than one child, would your children be able to stay together?
- Do they hold similar values and beliefs to you?
- Do their religious beliefs align with yours?
- To they hold similar views on education to you?
- Do they already have their own children, or are they planning to have children in the future?
- Are they physically able to carry out the role?
- Do they live nearby or would your children have to relocate?
- Do they have the space to accommodate extra children?
- Is their lifestyle similar to yours?
- Are their finances comfortable?
- Are their relationships stable?
What should you do once you’ve chosen a guardian for your children?
Once you’ve selected a guardian, it’s really important to formally speak to them about taking on the responsibility. While this may seem an obvious step, it’s frequently avoided. It’s essential for your children’s wellbeing that this responsibiliy is accepted out of love, rather than obligation. Having the conversation will help to put your mind at ease too.
It’s also important to speak to your chosen guardian about your wishes for your children to ensure you’re aligned. For example, what sort of education you would like for your children? We also recommend you discuss any financial provisions and considerations too. For example, will your estate provide an income stream for various living expenses? We talk more about this below.
Once you have a selected guardian in place, the next step is to formally appoint the guardian in your will.
How to make your children’s chosen guardian legally binding
To legally appoint a guardian for children, you’ll need to draw up a will or modify an existing one. Ideally, both parents will do this and name the same guardian.
We always recommend our clients get the will written up professionally by a solicitor to avoid issues down the track. Although tempting, it can be a false economy to go the DIY option. If you execute it incorrectly, the legal costs will be far higher than had you just engaged a solicitor. This is even more pertinent in cases where there is pre-existing tension between family members, blended families, a family business or you wish to make charitable gifts.
A will is a respected document held in high regard by the court. But it’s important to note that the Family Court retains an overriding power to appoint a different guardian when it considers this to be in your child’s best interests. So while appointing a guardian in your will certainly helps to avoid disputes, make sure you choose wisely to reduce the likelihood that it’s contested.
Once your will is drawn up and a guardian appointed, set a reminder to review it every one to two years and make any necessary updates.
What happens if I don’t choose a guardian for my children?
In the event of your death, in most circumstances, your child’s other parent will automatically have parental responsibility for your children.
If both parents died and there are no specific directions for guardianship in a will, any person with sufficient interest (i.e. grandparents, aunties or uncles) can apply for guardianship of your children.
In such situations, the Family Court decides who should become the legal guardian based on the best interests of the child. This is not ideal as the person chosen by the Court may not be the person that you would choose and parent in line with your values.
How do I ensure my children are provided for financially?
A nominated guardian should not suffer financially from taking on the responsibility to your children. You also need to consider your children’s share of the estate, how it will provide for them and who will look after it until they come of age.
It’s common practice for the guardian to have access to the children’s share of the estate, at the discretion of the trustee. You could appoint the same person to take on both responsibilities if you have complete trust in them. But we recommend having two different people acting as executor/ trustee of your estate and guardian of your children. The executor/ trustee will be in charge of distributing the money to your children’s guardian according to your will. The guardian of your children will be responsible for making lifestyle decisions for your child. This seeks to avoid conflicts of interest or any potential misconduct.