How to choose someone to look after your children upon your death – the appointment of a testamentary guardian

Published by Renee Stevens on

When clients approach our firm to prepare a will, they often have a good idea about what should happen to their property upon their death, but they don’t always realise that they can specify in their will who will look after their children, should something happen to both parents.

The appointment of a guardian is an important reason to make a will if you are the parent of young children. This ensures that your wishes for your children are formally documented. It can, however, be a very difficult decision. This is particularly so if there is an expectation from grandparents or siblings that they will care for the children or if there is no obvious choice of carer, say if the clients’ family are overseas or they don’t have good relationships with their immediate family.

Power to appoint a guardian in a will

Every Australian State and Territory has legislation in place which gives a parent the right to appoint a guardian in his or her will. If there are no instructions in a will regarding the guardianship of children, in the event of the death of both parents, any person with a sufficient interest can apply for guardianship of your children. If this were to happen, the Family Court would decide who should become the legal guardian based upon the best interests of the child. The person chosen by the Family Court may not necessarily be the person that you would have chosen to care for your child or children.

Your nomination of a guardian in your will is binding. Guardianship can only be changed by court order. A legal guardian takes over the duties as the children’s parents until they turn 18 years of age. This includes making decisions about their day-to-day care, upbringing, where they live, go to school, health and general welfare. It is likely that the guardian will also influence the children’s moral and religious beliefs.

Appointing a guardian may help avoid disputes between family members. Grief, feelings of obligation or entitlement may arise for family or close friends when parents of young children die. An already devastating situation can be made worse if no guardian has been nominated and family members fight over who is best placed to care for the children. If parents make their decision clear in their wills, it removes doubt on the issue.

Rights of surviving parent

Usually the appointment of a guardian will only come into effect upon the death of both parents, but it will depend on the circumstances. Ideally, the will-maker should communicate with the other parent, even if the parents are estranged, to make sure that the guardianship arrangements for the children are coordinated.

It is unusual for a will-maker to intend to create a joint guardianship between the other parent and a third party, even if they are estranged. Usually, the will-maker wishes to appoint a testamentary guardian to act only if there is no surviving parent. However, it may be that it is not in the best interests of the child for the surviving parent to be the legal guardian, say if there is a history of domestic violence, drug or alcohol abuse. In such circumstances, it may be appropriate for a testamentary guardian to act jointly with a surviving parent where there is one.

Choosing the right person as a guardian

The decision of who should care for your children can be extremely difficult and can stir up emotions and conflict between couples. We find that the decision concerning guardianship can be so hard for some people that they put off making a will completely.

Factors to consider when deciding who to appoint as a testamentary guardian include:

  • the location of the guardian – will your children be able to continue to attend the same schools or see their friends?
  • similarities between your lifestyle, values and religious beliefs
  • the ability of the proposed guardian to take on the responsibility emotionally, physically and financially  
  • whether the guardian already has or is planning to have children

It’s important that you discuss your intentions with the proposed guardian and gain their consent to take on the role. You should also consider the wishes of your children and their relationship with the proposed guardian. This is particularly important once the children reach their teens.

Financial provision for the guardian

It can be difficult to ensure that the person caring for your minor children does not suffer financial hardship as a result of undertaking the carer’s role. It is common for the guardian to have access to the child’s share of the parent’s estate, at the discretion of the trustee. Problems can arise, however, if the carer must extend the house or purchase a larger house or vehicle to accommodate the larger family.

Provision can be made in the parents’ wills to ensure, as much as possible, that the children’s guardian does not suffer financial hardship.

Choosing a guardian can be a difficult and confronting task for parents of young children, but it is important that conversations take place and decisions be made to ensure that your children are looked after by the person that you consider to be the most suitable for this significant job.