Considerations of a Will-Maker in appointing a Guardian for children

Planning for what happens when you die can be very stressful. In addition to planning for how you would like your property, possessions, and assets distributed, if you have minor children, you will also want to consider appointing a successor Guardian. A Guardian of a child is responsible for making parenting decisions, including making important decisions such as where the child will go to school, healthcare decisions, and overall ensuring to act in the best interests of the child.

It is important to consider appointing a successor Guardian if you have minor children. Generally, the biological parents of a child are the Guardians. A Step-parent of the child is not a Guardian of that child unless they have been appointed by a Court Order. If one Guardian parent dies without appointing a Guardian in their Will, the other Guardian parent will become the sole Guardian of the child. If a sole Guardian of a child dies without appointing a successor Guardian, the Public Guardian and Trustee will become the child’s property guardian, and the Director under the Child, Family, and Community Service Act becomes the child’s personal guardian.

Anyone else who wants to be the child’s Guardian will need to apply to the Court for an Order, which can be a stressful and time-consuming process. If a child’s remaining living parent is not a Guardian of the child when the Guardian parent dies, the non-guardian parent does not automatically become a Guardian of the child. They would need to apply to the Court for an Order to appoint them as a Guardian.

When choosing who you want to appoint as a successor Guardian for your child in your Will, the only relevant consideration is the best interest of the child. The person you choose will become your child’s legal Guardian when you die. It is important to take the decision of who to appoint seriously, as they will take on all of your parenting responsibilities and will be responsible for your child’s well-being. There are many things you should consider when making this important choice.

You may wish to consider things such as

• the person’s relationship with the child,
• whether they would be able to afford to look after the child, and
• if they would be able to meet the needs of the child.

Other factors may include

• religion (the child’s and the proposed Guardian’s),
• the child’s cultural heritage,
• whether the child would need to leave their school or community,
• whether the proposed Guardian has other children and
• any other factors that you consider important.

When determining the best interests of a child, every case is different. Often family members are appointed successor guardians.

Choosing who to appoint as a successor guardian for your children can be an overwhelming process, especially if you have a complex family dynamic. For help in creating a Will and appointing a Guardian for your children, contact Heath Law