Willed Australia

How to appoint a legal guardian in your will

If you have children who are under 18, it is imperative that you create a legal Will that will set aside provisions, plans and resources for their future. A major part of this planning involves guardianship. This is the crucial piece of the puzzle, and it will have a huge impact on your children’s lives in the event of your death.

The legal concept of guardianship refers to the legal process where a family or other persons, depending on your state's laws, take care of a person who isn't legally present.

Generally, it's possible to pass over responsibility for certain important decisions to a third party, like an adult relative, friend etc. But it’s not as simple as just asking someone. You have to set it into writing in a Will.

In Australia, it is expected that, in most instances, if a parent passes away, they should have a Will in place that plans for the future of their assets and their family, and that the parent's Will would also provide for the appointment of a guardian. If this has not been planned for, the state will appoint a guardian based on the closeness of the children’s relations and next of kin. While that may seem simple enough, if you have other preferences, or their next of kin is either not in a position to care for them or does not want to undertake that responsibility, a Will is necessary to set out your plans.

What is a guardian and how do they help?

A guardian is the person with the most legal power over a person who cannot care for themselves. Their job is to protect a person who lacks the legal power to make their own decisions. It is their job to bring about a better outcome for the person, including preventing them from abusing drugs and alcohol, improving their education, protecting them from harm, making sure they are treated fairly and living in a healthy environment.

In most jurisdictions, legal guardianship or custody of a minor allows a neutral person to make decisions for the person under that natural person's legal control.

If you are a legal guardian of a minor, you can make decisions regarding the minor's health and education, participate in decisions concerning the minor's education, finances, and wellbeing.

Whether they are court appointed or appointed through a legal Will, guardians have duties. They must follow court orders, keep the state advised through regular welfare checks and take every precaution to care for the minor’s safety.

Who is eligible to become a guardian?

People are eligible to become a guardian if they are over the age of 18, and are not on the Sex Offenders Register or on any other recognized domestic violence register.

A person who is eligible to become a guardian must be of good character, comply with the guardianship rules and have knowledge of the potential needs of the person or children.

It is important to be prepared to explain the reasons for a guardian being appointed to the children and any other significant requirements for your prospective guardian. Any person appointed as a guardian must also agree to abide by the proposed guardianship order and the Will itself.

How do you organise a guardian for your children?

To create a Will that covers guardianship, you will be asked for basic details on yourself and your immediate family members, nominate the guardian and set down the details of the arrangement. Having it in place in proper documentation ensures that it will be adhered to, and that the right person will become their guardian and carer.

When creating a Will, there are a range of other factors that you will need to consider, around executors, beneficiaries and asset division; but as a parent, the guardianship element will be the most important, and having it clearly determined will help your peace of mind.

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