Attwood Marshall Lawyers Wills and Estates Associate and Accredited Aged Care Professional Larisa Kapur recently joined Robyn Hyland on Radio 4CRB for “Law Talks” to discuss a crucial aspect of estate planning and the provisions of your Will – appointing a guardian for your minor children in your Will until they reach ‘majority’ or 18 years. While most people understand the importance of writing a Will, the matter of guardianship for surviving children or those with a disability is often overlooked and misunderstood.
Estate planning and guardianship considerations
Estate planning encompasses a wide array of considerations that impact your life both during your existence and after you die. It is far more than simply writing a Will or completing an online Will. Estate planning also looks at who will assume the role of guardian to care for your minor children or those with a disability if an unforeseen tragedy occurs (and these do occur!).
When doing your estate plan with a qualified estate planning lawyer, you enter a meaningful conversation that will uncover critical aspects to plan for if something unexpected happens.
While these may not be topics we readily dwell upon or want to discuss, they are crucial conversations to have, and you should discuss the role of guardian with whomever you wish to appoint and make sure they are aware of your intention and agree to act as guardian. Most people appoint their parents or their siblings (or sometimes their grandparents), but you need to ensure that whoever takes up the position has the capacity to undertake this crucial task.
Appointing a guardian for minor children in your Will
Being a guardian is a role that covers all aspects of what it means to be a parent, and then some!
When appointing a guardian for minor children in your Will, you are granting an adult the responsibility to care for that child and giving them the power to make decisions on their behalf like a parent would.
A guardian can make decisions about the child’s education, healthcare, where they live, and how they are raised.
A guardian must provide a safe and nurturing home for a child, always act in the child’s best interests, maintain positive relationships with the child’s extended family (if both parents have passed away and it is appropriate to do so), and manage the child’s finances until they reach adulthood, which may include managing their inheritance.
Being a guardian is a very onerous responsibility, both emotionally and financially, and in many cases the appointed guardians don’t know they have been appointed until the parent/s die! You can imagine the double whammy of grieving over a close relative or friend, only to discover you have their children to look after.
Is it legally binding?
Being appointed guardian under a Will does not make the direction binding. It means that the guardian is entitled to be a part of any proceedings in determining the child’s guardianship. For example, if there is a surviving parent of the minor child, that parent typically has the legal right to custody and guardianship of the child. This right is usually given precedence over appointing a guardian in a Will.
The appointment of a guardian in the Will may still be relevant in some cases, especially if there are reasons to believe that the surviving parent may not be suitable or willing to fulfil their parental responsibilities. However, the court will generally consider the child’s best interests when making any decisions.
Sometimes the appointment could be challenged by an aggrieved family member in the Family Court, in which case the Court will look at whatever is in the best interests of the children, as well as trying to give effect to the deceased parent’s wishes.
Accepting the role of guardian
If the person appointed as guardian in a Will accepts the appointment, the steps to take on the role are as follows:
- Review the Will: Ensure you understand the deceased person’s wishes regarding the minor and any specific instructions or conditions related to the guardianship.
- Express your acceptance: If you decide to accept the appointment as a legal guardian, you should provide written notice of your acceptance to the executor of the Will. This notice should be in the form of a formal written document, signed and dated.
- Notify relevant parties: Inform other interested parties, such as family members, who may be involved or have an interest in the minor’s welfare, about your decision to accept the guardianship.
- Apply to the Supreme Court: Apply for an order that the appointment takes effect immediately to formalise your appointment as guardian, especially if there are disputes or the Will does not specify the guardian’s role.
- Comply with legal requirements: Ensure you comply with all legal requirements and timelines for accepting the guardianship as outlined in Queensland law.
- Meet your responsibilities: Once you have formally accepted the role, you must fulfil your responsibilities as legal guardian. Such responsibilities include providing for the minor’s physical, emotional, and financial well-being, and making important decisions on their behalf.
- Keep records: Maintain records of all decisions and actions you take as a guardian, as you may be required to account for your guardianship to the court or other interested parties.
It’s essential to handle the acceptance of the guardianship role with care and diligence; the well-being and best interests of the minor are of paramount importance. If you have doubts or questions about the process, you should seek legal advice to ensure you fully understand your obligations and rights as legal guardian under the Will.
Declining the role of guardian
In the unfortunate event that both parents are no longer alive, and the person named as the guardian in the Will declines the responsibility or refuses to act as guardian, it’s essential to understand the legal and practical implications.
There are various valid reasons a named guardian may refuse the role, including personal circumstances or an inability to fulfil the duties. Open and honest conversations during the estate planning process are paramount to try an avoid such a dilemma. Discussing your wishes with your chosen guardian can help ensure they are willing and capable of taking on the role, in line with your intentions.
However, life can bring unforeseen changes. Challenges may arise if the appointed guardian’s circumstances shift after your Will has been finalised and it is not updated accordingly. The chosen guardian’s health might deteriorate; they could move into an aged care facility or could move interstate or overseas.
In such cases, if the designated guardian declines their role, it’s advisable to seek immediate guidance from an experienced estate and probate lawyer. A lawyer will guide the guardian through the process of refusing the appointment and submitting a formal declaration or petition to the court for a replacement.
The court will always prioritise the best interests of the children.
Factors like the children’s ages, their preferences, and the capacity of the potential guardians to provide suitable care are considered.
The court will also aim to understand the relationship between the children and the individuals stepping into the guardian role. This ensures that the decision aligns with the well-being and welfare of the children.
Dying intestate (without a Will): what happens if there are no instructions on who should look after minor children?
This is similar to if the person assigned guardianship in a Will declines the position.
In the event of no Will and no guardian, initially, family or close friends may step in to provide temporary care for the children until the legal guardianship matter is resolved.
Any person with sufficient interest, including grandparents, aunts, or uncles, can establish a formal guardianship arrangement by applying to the Family Court and making their case as to why they are suitable.
The courts will consider what is in the child’s best interest and all the circumstances surrounding the application for guardianship, not just if there is a family relationship.
The legal process ensures that suitable guardians are appointed to provide for the children’s care and upbringing.
In some cases, the court may continue overseeing guardianship arrangements, ensuring the child’s best interests are maintained. This may involve periodic reviews of the guardianship situation.
Key takeaway
While we sincerely hope to never find ourselves in a situation where our chosen guardians need to step in, preparing for the future is crucial, especially if you have young children or dependents.
Engaging in essential discussions about your children’s well-being is not only about the “what-ifs” but also securing their future with a thoughtful plan.
The first thing to consider is who the most suitable person is to take on the role of guardian. Talk to that person about your wishes. They need to comprehend the significance of their role and your expectations for providing the kind of care you wish for your loved ones. Clarity in communication can alleviate potential challenges down the road.
Conversely, if someone has approached you to act as guardian in their Will, please don’t take it lightly or assume it won’t be necessary. Open, honest discussions about your willingness to take on such a responsibility are essential. Don’t dismiss it with the hope that it won’t ever come to fruition.
When drafting a Will and contemplating these matters, it’s essential to consider a range of key factors when selecting the right person for these roles. These include:
- Your chosen guardian’s age and health: assess whether the individual is physically and mentally capable of caring for young children over the long term.
- Stability and financial status: evaluate the guardian’s financial stability and well-being. Ensure they can provide for your children’s basic needs, including education and healthcare.
- Living arrangements: examine the guardian’s living arrangements and future plans. Consider whether they have a suitable home and if their living situation will likely change in a way that could impact the children.
- Location: Think about where the chosen guardian lives and your children’s current environment. If you want your children to stay in the same area or attend the same school, choosing a guardian who lives nearby is essential.
- Cultural and religious alignment: assess whether the guardian shares your cultural and religious values, especially if these aspects are essential to your children’s upbringing. Ensure the guardian can provide continuity in cultural or religious practices that are important to your family.
- Parenting style and values: discuss your parenting style and values with the potential guardian. Ensure their values align with your own and that they can provide a similar upbringing for your children.
These are just a few of the issues to think about; not just for the Will-maker, but also for the guardian stepping into enormous shoes to fill.
Attwood Marshall Lawyers – helping you plan for the future and preserve your wishes
Our estate planning lawyers are here to give you trusted advice when completing your estate plan. There is a lot to consider; having an experienced lawyer guide you through the process will help ensure you have all your affairs in order, and you can have peace of mind.
We take a holistic approach to estate planning and will help ensure that your plan aligns with your specific family circumstances, the types of assets you own, and how you wish to distribute your assets after you are gone.
To discuss all your estate planning needs, including appointing guardians in your Will, contact our Wills and Estates Department Manager Donna Tolley on direct line 07 5506 8241, email dtolley@attwoodmarshall.com.au or free call 1800 621 071.
Our estate planning lawyers are available for appointments at any of our conveniently located offices at Robina Town Centre, Coolangatta, Southport, Kingscliff, Brisbane, Sydney, and Melbourne.
