Cairns Wills & Estate Lawyers | Will Disputes and Estate Lawyers

Choosing a Legal Guardian for Your Children

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It can be unpleasant to have to think about what would happen to your children if they became parentless, but when preparing for their future, it is important to consider who would look after your loved ones if a tragedy takes place.

In the event that the death of one parent occurs, the surviving parent will usually become the children’s legal guardian. This may not be the case if it is found that this is not in the best interests of the child. Circumstances where this may apply include if the surviving parent is the perpetrator of family violence and/or have a history of mental health issues and/or drug use and alcohol abuse.

So, how do you ensure that your children would be raised and looked after in the same or a similar manner to which you had been planning? Choose a Legal Guardian for your children and make this person or people known by including them in your Will.

How do I choose a Legal Guardian?

It is up to you to choose a Legal Guardian or guardians (if appointing a couple) for any reason you desire, however, the following considerations are usually applied:

  • The location and lifestyle your child might need to adapt to (for example, a move from the city to a remote location);
  • The children’s existing relationship with that person or couple;
  • The financial, physical and emotional ability of that person or couple to take on the responsibility of raising a child;
  • The person or couple’s desire to become a parent, or their existing status as a parent; and
  • Lifestyle similarities including personal values and religious beliefs and how these might impact your children’s upbringing.

Should I tell the chosen person or couple that I have selected them as Legal Guardian?

Yes. Before you include these wishes in your Will, it is crucial that you discuss your intentions with the prospective guardian/s and obtain their consent. It is also not uncommon to identify a second person or couple to act as Legal Guardian in case the first choice is no longer able to act.

What happens if I do not appoint Legal Guardians?

If both parents die intestate (meaning no valid Wills existed at the time of the deceased’s deaths) or there are no proposed Legal Guardians named in the Will, then relatives, such as grandparents or aunts/uncles, may apply for guardianship of your children. If this does happen, a decision will be made by the Family Court after considering the best interests of the children. The Court may also take into consideration who your children wish to have as their Legal Guardians, particularly if they are teenagers.

Ultimately, the final decision on who will be appointed the Legal Guardian of the children will be made by the Court, however, the instructions in your Will are considered first and foremost and bear the most weight.

How can I ensure the proposed Legal Guardian can afford to raise my children?

Generally, provisions will be made in your Will for the nominated Legal Guardians to have access to your children’s share of your estate, so they do not suffer any loss and are not financially burdened in their role as Legal Guardian.

Some people choose to appoint the Legal Guardian as the executor of their Will. It is recommended that you discuss your options with an experienced lawyer. 

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