Legal Guardians and Your Will

WHAT IS A LEGAL GUARDIAN?

A legal guardian, of the kind that as a parent you might name in a will, is someone who you appoint to look after your child should you die before that child reaches the age of 18. As such, this is probably the most important part of a will for parents and should be thought about carefully.

Your child will become the guardian’s ward. The guardian becomes responsible for their ward’s care and custody – just as you, as a parent, are responsible for the care and custody of your child. They must look out for the child’s best interests, both in terms of personal welfare and financial affairs. They have all the powers, rights and duties of a parent, and are enabled by law to access services like health care on the child’s behalf, and to sign legal documents.

WHO CAN APPOINT A GUARDIAN?

Both you and your child’s other parent will usually have the right to name a guardian or guardians in your will. Generally, the guardianship will only come into operation if you both die, although it is possible to specify that you would like the guardian that you appoint to act jointly with the other parent, should he or she survive you. Naturally, it is best if you can to discuss the matter with the other parent and find someone that you can both agree on, thus minimising the chance of conflict in the future that could prove damaging to your child. If there is any dispute then the decision will be up to the courts, and while they will try to follow the wishes of the deceased they must in the end act in the best interests of the child.

WHO SHOULD I APPOINT?

It’s absolutely up to you. Generally, people choose to appoint a relative, someone with whom they have close familial and emotional ties and who they can trust to raise the child as they would themselves. But this does not have to be the case. Pick the person who you think will look after your child the best: who is responsible and reliable, who has a good understanding of what bringing up children involves, and who will act in a way that helps your child build a happy and successful future. Importantly, find someone who has a good relationship with your child, that your child likes and enjoys spending time with. It would be unwise to appoint a banker to be your child’s guardian in the hope that said banker will help them become rich, if the banker hates children and your child can’t stand to be in the same room as him. Ideally, before your write your will, discuss the matter with the person you are thinking of appointing, and ensure that they are willing and able to take on the responsibility.

HOW LONG DOES THE GUARDIANSHIP LAST?

Normally, the guardianship will last until your child reaches his or her majority – in other words, in Australia, when they turn 18 – at which point it will automatically terminate. However, if the child is incapable of looking after themselves for some reason, then it can be extended or a new application filed.

BUT I DON’T WANT TO THINK ABOUT IT!

The future is uncertain and it is important that we make provision for it not turning out as we hope: it might be difficult, emotionally, particularly when it comes to thinking about those we would leave behind, but if you don’t make preparations now then it is those you love the most who will suffer. Make a will, and name a guardian, and be reassured that even with you gone your child will have a bright and hopeful future.

 

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