Upon having children it is crucial to discuss with your partner who will look after your children in the event that you both pass away. In New South Wales, all children under the age of 18 years are required by law to have someone appointed to look after them, this is known as a guardian.
What does a legal guardian do?
A legal guardian is appointed to look after children under 18years in all aspects of their life, including long-term decisions such as; education, values and religion and health and lifestyle. It is important that you chose a guardian that you trust to raise your child/children, as they will be responsible for providing a permanent, safe, stable and caring home for your child until they reach the age of 18years. As guardianship is a major commitment and responsibility it is crucial that you discuss with the potential guardian if it is feasible for them to look after your child/children. This may include discussions of;
- Living arrangements (whether the child can move in, or if the guardian is required to move);
- Education (what type of school they go to, what level of education they receive);
- Access to financial arrangements and support;
- Setting up a Trust for your children in your Will.
You are able to appoint more than one legal guardian for your child/children, they can act jointly in ensuring the best interests of the child/children.
What happens if you do not appoint a guardian?
If you do not appoint a legal guardian for your child/children and both you and the other parent pass away then anyone with an appropriate relationship with the child can apply for guardianship. This can include;
- Grandparents;
- Aunts & Uncles;
- Siblings (if over 18 years)
- Step-parents; or
- Family friends.
In this case the Family Court will make a decision as to who the guardian will be. This decision may not necessarily reflect your wishes and your child/children may be raised by someone you would not have appointed as a guardian.
To ensure that your wishes are upheld after you pass away it is imperative that you make a guardianship clause in your will. It is important that your Will is properly drafted by a solicitor to ensure its validity and that there is a guardianship clause outlining who will be the legal guardian of your child/children.
WMD Law has a team of highly experienced and dedicated lawyers who can assist you in writing your will or updating an existing will to incorporate a guardianship clause. Please do not hesitate to contact our estate planning team on 9525 8688 or email info@wmdlaw.com.au. We also invite you to download our free Estate Planning eGuide.
