It is a comforting thought to know that there are arrangements in place for your children should you suddenly pass away. We have a lot of new families who ask us to write up their Wills after their first child arrives. It is great assurance to know that your intentions are clearly written down should something unexpected happen.
You can appoint a person over the age of 18 to be a guardian for your children. This person is referred to as a ‘testamentary guardian’. The appointment of a guardian has to be done in accordance with the laws of the state of territory in which you reside otherwise it will be ineffective.
There are more difficulties to overcome if you are separated from the child’s other parent and you would like to appoint someone else apart from the surviving parent as the children’s guardian.
Alongside giving them responsibility to care for the day to day needs and decisions regarding your children, you are giving them long term responsibility over the long-term care and welfare of your children.
In the event that the testamentary guardian is appointed, the guardian then has rights and duties subject to the Family Law Act. If there is ever a dispute regarding the appointment of the guardian or the care of the children an application can be made to the Court. The Court will then consider what is in the best interests of the children.
Who cares for your children in the event of your death is a different consideration to who controls your finances and how they will be distributed to your children. You should consider whether the guardian should have access to financial assistance for your children through your executor and/or financial reimbursement. You can appoint different people or the same person to be your executor and testamentary guardian.
When discussing how your finances should be controlled in the event of your death and an appointment of a guardian, you need to consider your children and the guardian’s future needs including housing, education and medical expenses.
You may wish to leave a statement of wishes to your executors. Whilst this is not a legally binding document it does document your wishes and can be used as evidence in Court if there is ever a dispute. Your statement of wishes can also include who you would like your children to be looked after in the event that you’re appointed guardian cannot begin their role immediately after your death.
If you would like to get a Will a drafted or change your existing will to include a testamentary guardian you should contact one of our estate planning lawyers today.