Appointing a Guardian for Your Children
Author:
Rockliffs Solicitors and IP Lawyers
Publish Date: June 1, 2012
In your Will, you may have only considered the needs of your children from a financial point of view. You should, however, also consider the welfare and upbringing of your children in the event that either or both parents die or cannot perform the role of parent/guardian.
What is "guardianship" of a child?
A guardian is a person who has responsibility for the long-term welfare of the child and has all the powers, rights and duties that are usually vested by law or custom in the guardian of the child. Parents have the guardianship of their children as a natural right unless a Court otherwise orders. The role of a guardian is to essentially guard or protect a child and his or her interest from harm.
What legal force does the appointment of a guardian have in a Will?
Any Court deciding issues relating to a child makes its decision based on "what is in the best interests of the child". Generally, if parents have taken the time and effort to prepare detailed instructions regarding the welfare of their child then those instructions ought to be followed by a Court unless there are compelling reasons for the Court to do otherwise. For example, the guardian appointed may be incapacitated in some way at the time of the death of the parent(s) and, therefore, the Court may consider it is in the best interests of the child to appoint an alternative guardian to that appointed by the parents.
What are the benefits of appointing a guardian?
In the unfortunate circumstance of both parents dying and the children becoming orphaned, those who have been entrusted to look after the children will have a carefully prepared record of what the parents themselves wanted for their children. The children's guardians will then not be left to guess at what the parents' wishes for their children might have been. By leaving documented guidelines, the deceased parents will have done all they can to ensure that their influence on their children's lives continues.
Who can appoint a guardian?
Generally, each parent has a right to appoint a guardian or guardians to act after their death. The appointment of a guardian, however, does not generally operate unless there are no surviving parents.
Who can be appointed as guardian of your children?
You can appoint anyone you choose to be a guardian regardless of whether that person is a relation of yours or your child. It is recommended, however, that you appoint one person rather than multiple persons as the guardian to minimise disputes arising between such persons with respect to the welfare of the child.
We suggest that you speak to one of the solicitors at Rockliffs to advise you further in respect to preparing and/or updating your Will to include the appointment of a guardian and to assist you, if desired, to prepare guidelines for the guardians.
For further information or assistance please contact Rockliffs on 02 9299 4912 or email us at lawyers@rockliffs.com.au