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The Decision You Simply Can’t Put Off

What you need to know

If you have any minor children (i.e. younger than 18 years) then you should you consider who will look after them if you suddenly die.

Upon the death of one parent, the surviving parent would generally be legal guardian unless there are extenuating circumstances, such as the surviving parent having a history of drug or alcohol abuse or domestic violence. If there aren’t any specific instructions in your Will then, upon the death of both parents or the death of the only capable and willing parent, any person who is considered to have a sufficient interest (e.g. relatives) may apply to the court for guardianship.

In these circumstances, the court will decide who should be legal guardian based on the best interests of the child. This may not necessarily be the person that you would have elected to fill that role.

While it may not be a pleasant thought, you can create a contingency plan and make your wishes known by naming a guardian for your minor children in your Will. While the court has the power to override a nomination if it considers this to be in the best interests of the children, it is not something that is done lightly.

Guardians do not have to be blood relatives, although they frequently are, and you may even appoint joint guardians.

Other people may have very different views about the appropriate level of care, education, discipline, religion, support and direction for your children, so it is important that you consider who will be the best fit for your kids. Discuss it with your preferred candidates, let them know your views and wishes, make sure they are prepared to take on the role, then set out your decision in black and white.

As circumstances change over time, or if you simply change your mind, you can revise your nominated guardian. In many cases this can be done simply and inexpensively by making a codicil to your Will.

If your Will is drafted appropriately, you can reduce the potential financial burden on a guardian by allowing the executor of your Will to advance the child’s share of the estate over time to the guardian, to be used towards the education, maintenance and advancement of that child. Appointing different people as executor of your Will and guardian of your minor children can act as a safeguard against any misappropriation of funds by the guardian.

At what is likely to be a difficult and emotional time for your family and friends, your nomination of a guardian can provide direction to your loved ones and reduce the possibility of disputes.

Naming a guardian in your Will for your minor children may turn out to be the most important decision you make for their future. It can be a difficult decision, but don’t put it off until it’s too late.


About the author

Peter’s areas of expertise are probate law and litigation, commercial litigation, and employment law. He is a member of the Elder Law and Succession Planning Committee of the Law Society of Western Australia, and is a full member of the Society of Trust and Estate Practitioners..


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