Many people make a will to distribute their property upon their death. Many appoint an attorney or enduring guardian to ensure their own affairs are looked after, in the event they are unable to look after them themselves. These documents can be used to provide for the care and protection of children in the event that their parents die or become incapacitated.

In your will you can nominate a guardian for your children and document your wishes regarding the care of your children in the event of your death.  By documenting your wishes for the care of your children in a will, you will have done all you can to ensure your influence in their lives continues.

While the Family Court is not under any obligation to appoint the guardian proposed in your will, the Court will have regard to your wishes in making any decision about the care of your children. The primary consideration for the Court is the best interests of the children and if you have taken the time to set out who you would like as your children’s guardian the Court would give consideration to those wishes unless there are compelling reasons to do otherwise.

Similarly, specific provisions can be made in your power of attorney to make provision for your children, in circumstances where for example as a result of an accident of illness you are incapacitated and require a third party to manage your financial affairs. You can specifically provide your attorney authority to utilise your finances for the benefit of your children.

In light of these considerations perhaps you should consider making or reviewing your will, power of attorney and enduring guardians to ensure your children are provided for.

If you require any further information in relation to the protection of your children or in relation to wills, appointment of guardians or attorneys or estate planning generally please contact Emma Irvine or email

Subscribe to the WMD Law Newsletter

Stay in touch with the latest legal news and legislative changes that
impact you by subscribing to our legal newsletter. It’s delivered to
your in-box every month and is always packed with interesting articles
prepared by our legal team.