How to Choose and Appoint a Guardian for Minor Children
The birth of a child is an exciting time. A new chapter of your life begins when a baby is born. It’s also a time that you may ponder the fragility of life and the impact that unexpected circumstances may have on your loved ones.
Why you should appoint a guardian for your child
You can’t control what happens in your day. But you can create a contingency plan in case something were to happen to you and/or your partner. While this may not be a pleasant thought, it is worth taking some active steps to ensure that your wishes for your child are formally documented.
If there are no specific written instructions in a will and in the event of the death of both parents, 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 Family Court may not necessarily be the person that you would choose to care for your child.
In the event of a death of one parent, the surviving parent will usually be the legal guardian of the child, unless there are circumstances to reflect that this is not in the best interest of the child. Such circumstances may include: a restraining order against the surviving parent, incidences of domestic violence perpetrated by the surviving parent or a history of drug or alcohol abuse by the surviving parent. If you’re in this situation, you should seek the advice of a professional will writer to safeguard your children.
How to appoint a guardian for a minor child in a will?
You can formally appoint a guardian for your minor child in your will.
It is very important to discuss your intentions, obtain consent and discuss your expectations with the prospective guardian. During this discussion, it’s also a good idea to share the set of guidelines that you have prepared. Read more about creating a set of guidelines for the prospective guardian here.
How to choose a guardian for your child?
Selecting a guardian for your child can be a difficult decision because no one can really compare to you as a parent. To choose the next best person to care for your child, you may wish to consider the following:
- similarities between your lifestyle, values and religious beliefs – do these align with yours
- who your child might already have a bond with
- whether the individual already has or is planning to have children
- the transition, in terms of location and lifestyle, your child will need to make
- practically, who can take on the role – physically, financially and emotionally.
Other things to consider, beyond the selection and appointment of a guardian, are the details of how this may play out.
For example, whether your child will move in with the guardian, continue living in the family home, or in instances where the nominated guardians are the grandparents who are living in retirement villages, the prospective living arrangements for your child.
A nominated guardian should not suffer any financial burden or loss whilst acting in the role. Practice tends to be that the guardian will have access to the child’s share of the estate, at the discretion of the trustee.
Therefore, it makes sense to have two different individuals acting as executor/trustee of your estate and guardian of your child respectively. The executor/trustee of your estate will be in charge of distributing the money to your child’s guardian in accordance with the terms of your will. The guardian of your child will be responsible for making lifestyle decisions for your child. This seeks to avoid conflicts of interest or any potential misconduct.
You could appoint the same person to fulfil the role of guardian of your child and executor/trustee of your will if you have complete trust in them. However the nominated person should preferably possess reasonable financial acumen.
Where can you safely store your will?
Once you have completed your will, you should consider the individuals who should have access to your will and/or be made aware of its existence. This is a very personal decision and one for you to decide.
You can share a copy of your will with anyone you choose: your appointed guardian, family members, friends, religious leader, accountant or even your child.
If you’re concerned about leaving your original will in your family home, the Victorian Will Bank is a great alternative option. The Victorian Will Bank is managed by State Trustees. Being a government owned business, our facility provides secure and reliable storage at no cost to Victorians. Learn more about the Will and Powers of Attorney Registry and how you can lodge your will for safe keeping, no matter where or how it was written.
Final decision of the court
It is important to realise that if the worst case scenario were to play out, the Family Court would make the final decision about who becomes the guardian. And, depending on the age of the minor children, the Court may take into consideration of their wishes (especially after 12).
Ultimately the decision is made for the best interest of the child/children. However, a will is a highly respected document. Providing your will can be found and is valid, the wishes you outline, in most cases, would be held in high regard in the Court.
For decades State Trustees has been looking out for the best interests of the Victorian community to aid them to preserve their legacy for their loved ones. State Trustees writes more wills than anyone else in Victoria and our will writers are experts in dealing with estates of all levels of complexity. In addition to our consultative will writing services, we sell DIY Legal Will Kits online and in major Australia Post stores (Victoria only).
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