It is important to ensure that you make provisions in the way of guardians for any children you have under the age of 18 because a Will is the only way of appointing guardians for your children.
If you do not appoint guardians then Courts could decide who is to be appointed as guardian to your children, this may not be the person/persons you would have chosen yourself.
Whilst making these decisions it is possible that the Court may order that your children are taken into care whilst it decides who would be the best person/persons to look after your children. Any decision the Court makes will be on the basis of what the Court thinks is best for the child.
If one parent dies the law provides that the surviving parent becomes the legal guardian of the child/children under 18.
A guardian appointed by a Will cannot be removed from that position unless by order of either the Supreme Court or Family Court. In making any determination the Court will operate on the presumption that the appointment by the Will is to be upheld. Therefore, any change of guardian will only be because the guardian appointed by the Will is unsuitable for that role and not because someone else may be more suitable.
If there were to be an accident and both of the parents were to perish at the same time, the guardian would be called to act.
When choosing the guardian for your children it is important to consider the factors below.
- Age of proposed guardian(s)
- The frequency of contact children have with proposed guardians
- Children’s wishes
- Values of guardians, will they continue your parenting methods?
- Location of guardians
- Guardians do not have to be family members
In addition, it is also relevant and most important that you understand that a Will can be updated at any time to accommodate changes in the guardian’s circumstances and contributing factors.
First example: You choose parents/grandparents to be guardians as they have the most contact with your children right now. In 10 years’ time they may be unsuitable because of age, health etc. so a change to the guardian section of your will can then be affected.
Second example: You choose a sister and a brother in law as guardians again because of the frequency of contact/values etc. however 5 years after making this decision they move away or separate and divorce. This again would require a change to the will to meet the current needs.
For further information contact our team on (08) 9368 1337
Information provided by Willcraft Estate Planning Pty Ltd, An Incorporated Legal Practice.