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Who will take care of your children if you die

One of the great stressors in making a Will occurs when the person making the Will has children who are under the age of 18. The common question that our clients ask in this situation is, “Who will take care of my kids”? In a family with two parents the answer is easy – the surviving parent will take care of the child if you die.

But what happens if there is no surviving parent or both parents die simultaneously? Who takes care of the children then? How do you prepare for this possibility in your Will?

The answer is that within your Will you can appoint a guardian for your children (known as a “testamentary guardian”). The purpose of this nomination is to clear up any possible confusion about your wishes as to the person, or persons, you want to raise your children if you die

The appointment of a testamentary guardian grants that person a great deal of power and influence in the life of your child. The guardian will step into the role of parent and be responsible for major life decisions in such areas as:
1. Where your children live;
2. What schools your children attend;
3. Whether your children are raised within a particular religion or culture and
4. The lifestyle in which they are raised.

The person chosen to accept such a role is tasked with an enormous responsibility. Much care should go into choosing a guardian who has the necessary time, energy, responsibility and income to properly care for your child.

A guardian does not control the funds that you leave behind at death for your child. That job is the responsibility of the trustee managing your estate (although it is possible for the trustee and the testamentary guardian to be the same person).

The trustee will use his/her discretion to disperse funds to the guardian for the benefit of your child. It is therefore vital that the trustee controlling the funds for your child and the guardian making the life decisions for your child, have an ability to work together.

Ideally, when appointing a guardian for your children in a Will, you should inform them of your wishes and desires concerning the upbringing of your children. They should be made aware of exactly how you would like the job done.

An important factor to remember when drafting a Will appointing a potential guardian is that the appointment in your Will is not in the nature of a legally binding court order. After your death, in the event of a dispute about the guardianship of your children, the Family Court is the ultimate decision-making authority to determine where the children reside, and the Court makes that decision based upon its interpretation of the “best interests of the child”.

Your nomination of a guardian will provide a clear statement of your intentions to the Court, but will not bind the Court.
By specifically appointing a guardian in your Will you can reduce the possibility of conflict between family members over who is responsible for taking care of your children after your death

If no guardian is selected within a Will, and there is a dispute, then the Court will decide.

This could result in duelling sets of relatives litigating the issue of who the guardian should be. By appointing a guardian in your Will, you can minimise the risk of such a dispute.

Some clients, who feel strongly as to where their children should go (or not go) upon their death, choose to have a separate memorandum of wishes or statutory declaration drafted to accompany the Will setting out exactly why they have requested a particular guardian for their children.

For more information regarding a Will or the appointment of a guardian within your will, contact our Wills and Estates Team.