Making a will isn’t just about deciding who’s going to get your money. If you’re a parent, probably the most important provision will be naming the person you’d like to look after your child or children in the event of your death before they reach their majority. This person is called a ‘guardian’, and should be the person you most trust to care for your child as you would like to care for them yourself.
A legal guardian, then, is someone who takes over the job of a parent; your child will become their ward. They will assume legal responsibility for the care and custody of their new ward, and must act to protect their ward’s personal well-being and financial interests. They have all the powers, rights and duties that you have as parents. Often it is relatives of the deceased who step in to help look after any surviving children, but unless they are legally named guardians they may find that they have difficulties accessing health care, signing legal documents, or obtaining other services on the child’s behalf.
Normally, both of a child’s parents will have the right to name a guardian or guardians. If you wish, you can specify in your will that you would like to appoint a guardian to act jointly with your child’s other surviving parent should it be just you that dies, but it is more normal that the guardianship only comes into operation if both parents die. If possible, discuss the question with the child’s other parent before writing your will and agree on someone that you’re both happy with. If there is any dispute a court of law will adjudicate, and do their best to honour the wishes of the deceased, although ultimately they have to act in the manner that they think will best serve the interests of the child.
You can appoint anyone you choose to be the legal guardian of your child. While most commonly the guardian will be related to the child in some way, this is not necessarily the case – the decision is entirely up to you. You can even choose more than one guardian if you like, but only if you are confident that they will work well together as any conflict could have a negative impact on your child. The most important thing is to find someone who you trust to look after your child as you would wish to look after them yourselves: who is responsible, who is empathetic to their personal needs, and who will make the right decisions regarding their finances and future.
Try to pick someone that your child will be happy with – if your child is sent to live with someone they hate, then even if that person is reliable and trustworthy and can be counted on to act in the best interests of your child, the relationship will be a difficult one. It’s a good idea to discuss the issue with the person you are thinking of appointing to be the guardian, and making sure that they are happy with your decision and able to take on the responsibility.
The guardianship will automatically end when the child reaches the age of adulthood – 18 years in Australia – unless the ward is incapacitated for any reason, in which case it can be extended or a new application filed.
In short, think carefully when you make your will, and don’t be distracted by the minutiae of financial organisation from the questions that really matter. It can be much more difficult, emotionally, to think about what would happen to those we care about most in the event of our death, than it is to think about the handing down of money or property. Nevertheless, it is something that must be faced up to.