07 Mar 5 steps to choose a guardian for your children
Drawing up a will, thinking about your death and what you want to happen after your death doesn’t fill many people with the warm fuzzies. Everyone can appreciate that it’s an uncomfortable topic – taking your life and distilling it to the business-like transfer of assets and seeing your financial reality mapped out. Then there’s the added stress of choosing a guardian for your children.
It’s a weird feeling looking at your closest family and friends and identifying key characteristics and habits you would or wouldn’t like for your children. It is something that needs to be done, though.
When you die, the other parent will automatically have parental responsibility, however in the event you both die and haven’t legally nominated a guardian, any person with sufficient interest can apply to the Family Court for a parenting order to raise your children. This means there is every possibility your children may end up in a home you wouldn’t have chosen for them personally, being parented in a way that’s not in line with your own values.
You also need to consider your children’s inheritance and who will look after it until they come of age. If you die without a will, a court-appointed administrator pays your bills and taxes from your assets then distributes the remainder based on a pre-determined formula. This administrator will also appoint a trustee to manage your children’s inheritance, and once again, it may not be the person you yourself would have liked to have controlling that money.
So in order to avoid the potential disasters above, how do you go about choosing a guardian for your children?
1. Write it down
The first thing you need to do is define the qualities and issues that most matter to you in the person who will be raising your children. See the next point for things to consider. Once you’ve got your list of potential candidates, discuss each one’s pros and cons with your partner and assess how well each of these people match up with the items on your list.
2. Defining the ideal candidate
- Do you trust the person to raise your children the way you want them to be raised? Think about their parenting style, morals, values and beliefs.
- Is the person willing and physically able to carry out the role? For instance, are they considering having more children and may not have energy to devote to your children?
- What kind of relationship does this person have with your children? You want someone your children feel comfortable with, respect and love.
- Where does the person live? You may want to avoid your children having to relocate.
- Is the person financially stable and able to make good financial decisions? Your Will could provide for a lump sum gift for the guardian or the ability to live in your home rent-free. Your Will can also provide for advance payments for education expenses and the like.
- How old is this person? You can always amend your Will should your intended guardian become physically unable to care for your children.
3. Be sensitive to your family
Choosing a relative is the most common outcome but there’s no law that says your children have to go to a family member. For many, close friends are the family they would have chosen for themselves as they often share our value systems, goals and mindsets. Be mindful that the decision to appoint guardianship to a trusted friend can lead to tense arguments and heartbreak within your family. If you choose a close friend as the guardian of your children tell your family upfront and take the time to explain the reasons behind your decision.
4. Ask permission
Your long search finally over, you’ve picked your winning candidate! But before you start drawing up legal documents, you’ll need to ask these people for their permission. This isn’t just a simple matter of asking, ‘Hey, will you look after my kids if I die?’; you will need to sit down with them and speak openly about everything from the reality of your finances to your world views. Your prospective guardian needs to know exactly what they’re saying yes to and how such a decision might impact their own life.
5. Making it legal
Once the decision has been made and the prospective guardian has accepted, it’s time to draw up a will. We strongly recommend seeking advice in this area – the DIY will kit from the newsagent just won’t cut it because if you execute it incorrectly, fail to provide for someone or fail to describe gifts clearly, the legal costs will be far higher than had you just engaged a solicitor to draft a valid will. This is particularly true in cases where there is pre-existing tension between family members, blended families, a family business or you wish to make charitable gifts. The average cost of a will challenge is $100,000
Keep in mind that whilst appointing a guardian in your will may help avoid disputes, it’s important to note that the Family Court retains an overriding power to appoint a different guardian or remove a guardian when it considers this to be in your child’s best interests so choose wisely.
The final point is to review the arrangement every 12 months or so, you never know when things might change!
We’re here to help and we have an alliance with specialist solicitors in family estate planning. If you would like to discuss your options on your will, guardianship or estate planning please contact us.
Please note this information is general advice only. Please seek advice before acting on any information in this article.