What happens if my nominated Guardian is unable to take on the role?

Nominating a guardian is the easy part. But what if the time comes, and they’re unable to take on the role?
What happens if my nominated Guardian is unable to take on the role?

So, you’re writing or updating your Will (nice!) and you’re up to the guardianship part. Everything’s going smoothly (because our online Wills are super simple and easy to fill out, obviously) but here’s a question to consider – What happens if you choose a guardian to look after your children, and then when the time comes, they are unable to fulfil the role?

In this guide, we’ll tell you everything you need to know. (Hold onto your pens, people!) 

Wait – why wouldn’t my appointed guardian be able to take on the role?

Well, how much time do you have? Kidding. There are plenty of reasons why someone would decline a guardianship role to take care of minors (those under 18 years of age). For example, your nominated guardian may not be in a secure financial situation, they may manage a chronic health condition, or they could be nearing their long-awaited golden retirement years, and are therefore unable to care for children at this stage of their life. Basically, it’s a massive life change, and it’s certainly not for everyone, for so many different reasons.

Okay, so how can I make sure my children are looked after?

We get you. You’re already doing a great thing by writing or updating your legal Will. Seriously, well done you. So the next step is appointing your chosen guardian within your Will.

If you want to make sure your children are looked after in case the unexpected happens, it’s a good idea to:

  1. Ask your chosen nominated guardians if they would potentially be up for the role, so it doesn’t come as a massive surprise if the unexpected were to happen, and

  2. Nominate one or two back-up guardians, in case one of your preferences isn’t able to take on the role, if the time comes.

Got a question we haven’t yet answered? These FAQs might help.

(And if not, get in touch with us and we’ll help you out!)

What happens if one parent of a minor passes away? 

In this case, all parental rights will typically pass to the surviving parent, but there are exceptions to this, like 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. 

Also, you can appoint a guardian in your Will to care for your child alongside the surviving parent. Just keep in mind that the courts will generally favour the child’s surviving parent over any appointed guardian in a Will (again, there are exceptions to this). 

(If you do not wish for the surviving parent to obtain any guardianship rights, then it might be a good idea to seek personalised legal advice).

Do I have to appoint a guardian in my Will?

If you have children under the age of 18, then yes – it’s highly recommended. Why? Well, if both parents pass away and have not made a guardianship appointment in their respective Wills, then the Court usually prefers the children to live with relatives (but non-relatives who have had significant involvement in a child’s life are able to apply to become a guardian). 

If more than one person applies to be a guardian, then a guardianship battle may ensue, and no one really wants that! This can be significantly distressing and costly for all parties involved, so it’s best to clarify your wishes as a parent. That way your loved ones can avoid potential court dramas later on (hypothetically, of course).

Note: If both parents pass away and fail to appoint a guardian in their respective Wills, and no other party wishes to apply to care for the child or become their guardian, then the child or children may pass into the care of the state. This is why it’s so important to state your chosen guardian/s in your Will. 

Can I appoint two guardians or joint guardians?

Yes, you are able to appoint more than one guardian, however, joint guardians will be legally considered to have equal authority over the children (which may result in clashes over the child’s welfare). So, it’s important to take this into account if you are considering a joint guardianship option.

Wrap up

Let’s say that the worst case scenario happens, ie, a lengthy guardianship battle ensues and it’s up to the Family Court to make the final decision about who becomes the guardian. Depending on the age of the children, the Court may take their wishes into consideration (especially if they are 12 or older).

Ultimately, the Court’s decision is made with the best interest of the child/children at heart. However, a parent’s Will is a legally valid document, so it’s important to always keep your Will up to date so your wishes are followed. Providing your Will is valid and easily accessible, your wishes will typically be respected by the Court.

Okay, what now? Well, it’s probably a good time to create or update your Will. Start here.

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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.

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