Welcoming a newborn into a family is an exciting time that often leaves parents pondering the fragility of life, and thus making moves to write or update their legal Will. In the case of dependants who are minors (those under the age of 18), a guardian is typically specified in the Will (if there is one), so children are taken care of in the event that life takes an unexpected turn.
Not sure if becoming a guardian is the right life decision for you? Here is a general guardianship explainer, as well as a round-up of things to consider before you make your choice.
What is a guardian?
A guardian is a person who has been given the legal responsibility to care for a child by a judge or as specified in a Will.
Who can become a guardian?
The Court usually prefers for children to live with relatives, but non-relatives who have had significant involvement in a child’s life can apply to become a guardian.
What happens if one parent passes away?
If one parent passes away, the surviving parent will typically become the legal guardian of the child, however, there are exceptions to this. Examples of these circumstances are: if a restraining order is in place, or if there is a history of domestic violence or drug or alcohol abuse by the surviving parent.
If only one parent passes away but the surviving parent does not live with the children, disputes may also arise. This is why it’s so important to appoint a preferred guardian in your Will if you have minor children.
What happens if there is no Will, or no specific written instructions in a Will?
In the event of the death of both parents, any person with sufficient interest can apply for guardianship of a child. For example grandparents, aunts or uncles, etc. Where an application for guardianship is made, the Family Court will decide who is the best person to be named as the legal guardian. (This is not necessarily ideal, however, as the guardian chosen by the Family Court may not necessarily be the parents’ first choice). This is why every single parent should have a Will.
Before guardians are nominated in a Will
Before being nominated as a guardian in a legal Will, it’s common for the Willmaker to seek your permission. After all, it’s the kind of surprise that some people might be less than excited about. And whilst it might seem obvious to you that you’d agree (after all, you probably already know and love these kids!), we recommend that you think about the following practicalities first.
Life factors to consider before you say ‘yes’ to becoming a legal guardian:
Do you see yourself being physically able to care for the child or children? While grandparents are often preferred, consider how old you may be when the kids are in high school. Will you have the mental and physical strength to look after teenagers? If the answer is no, remember that you are not letting anyone down – you are doing what you feel is in the child’s best interests.
Your physical or mental health
If you live with a chronic illness or you have ongoing physical or mental health conditions, becoming a guardian may not be the right decision for you at this time. You may not have the stamina to take care of other people, let alone growing kids or teenagers. Do not feel guilty about turning down the role of guardian, as you do need to care for yourself in order to care for others. Also, remember this is not necessarily a temporary guardianship position you’re saying yes to – if you’re caring for young children, there may be, say, 10-18 years of care that you are simply not able to adequately provide for.
Your future plans and financial situation
You may already have children of your own, or are planning to have children in the future. If this is the case, you should think about whether you have the means (financial means, room in your home, etc) to support a larger family. Alternatively, if you're entering your golden retirement years, you might have been looking forward to spending your time travelling or volunteering, or you may already be caring for a spouse or a child yourself. In this case, you may not have the capacity to take on any more caregiving or parental responsibilities.
Lastly, you may not have the financial means to look after a child/children. In some instances, children may be able to access enough funds through their inheritance to help with the costs of raising them (medical costs, living costs, schooling, food and more)... but this isn’t always the case, so this is something worth thinking about before you sign the relevant paperwork.
While becoming a guardian is a selfless, commendable role to say yes to, it is also a major life change that is certainly not suitable for everyone.
If you’re still unsure about whether you’re up for the task, consider writing a list of questions that you’re concerned about and facilitating an open conversation with family, friends, or legal advisors to see if this is the right decision for your current and future lifestyle.
If you are the responsible for minor children, the best place to nominate a legal guardian is in your Will. Start your WIl today at willed.com.au
Disclaimer: The content of this blog is intended to provide a general guide to the subject matter. This blog should not be relied upon as legal, financial, accounting or tax advice.