In Event of Death Who Will Watch Your Children

Date: Oct 07, 2010
Document Type: Newsletter

Who will watch your children in the event of your death? If you have children younger than 18 years, this is a very important consideration. In your will, you may nominate one or more people to be your child's guardian in the event of your death. This may help to avoid any future disputes between family members by making your intentions clear. The question of 'who' is very important to any parent when nominating a guardian for their children, as well as what 'will' happen.

Who is a guardian?

Your child's guardian is responsible for the daily and long-term care and welfare of your children. The guardian will have all the powers, rights and duties that are usually vested in the child's natural parents. They can make important lifestyle decisions on the child's behalf. The guardian must ensure that the child is adequately housed, clothed and educated.

It is important to consider all short-term and long-term factors of your children's welfare when appointing a guardian. It is recommended to discuss these factors with your intended guardian, and your wish to appoint them. If there are any specific wishes as to how your children are to be raised (such as education, holidays, religion), you can create a Memorandum of Wishes. This is a legal document used to provide additional guidance to your guardian. At all times, when amending your will or creating a Memorandum, legal advice should be sought. 

Who can be appointed Guardian?

Any adult you choose can be appointed – regardless of whether they are related to you or your child. You can choose one or more persons to be the guardian of your child, although you should be aware that disputes may arise if you select more than one person.  Joint guardians will be legally considered to have equal authority over the children.

An alternative to joint guardians are 'substitute guardians', where they fill the position if the original choice of guardian is unable or unwilling to serve their role as guardian. Substitute guardians are also appointed in your will

Who can appoint a guardian?

Generally, each parent has the right to appoint guardians to act after his or her death. Usually the appointment only operates if there is no surviving parent, although it is possible for a parent to appoint a guardian to act jointly with the surviving parent.

An existing guardian or surviving parent may apply to the Supreme Court to cancel the appointment of a guardian. At any time of a court process, it is recommended to seek legal advice.

Who can override my decision of appointing a guardian?

While your will expresses your intentions on who should be the guardian of your children in the event of your death, it is not always legally binding. A court can exercise discretion to appoint another guardian if it considers it to be in the child's best interest.

Will my guardian have control over administering my estate?

No, this responsibility is the executor nominated in the will. Guardians may be able to retrieve funds from the estate to support the children via trustees. This usually should be outlined in your will. Generally, the payments can be paid directly to the guardian. Once your child turns 18, payments can then be transferred directly to them via the trustee.

Will there be legal implications of being a guardian?

The legal implications of being a guardian vary according to the laws within each State. It is always very important for the parent and guardian to speak to a lawyer. An example is superannuation - the death of a member usually means that the funds are distributed amongst the ‘dependants’ of the deceased.  Your children may be entitled to a share of the deceased guardian’s estate if they are still financially dependant on their guardian.

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