31/05/2013

If you’re a parent, naming the person you’d like to look after your children in the event of your death is as important as looking after the needs of your children from a financial point of view.

Every State and Territory has legislation that gives each parent of children aged under eighteen the right to appoint a guardian for them in their Will. For example, s.14 of the NSW Guardianship of Infants Act 1916 and s.135 of Victoria’s Marriage Act 1958 each specify that a father or mother of a minor may by Will appoint any person to be the guardian of the minor after his or her death.

Normally, the guardianship will only come into effect if both parents die. However, it is possible to nominate a guardian to act jointly with the child’s surviving parent.

While the legislation gives such rights, the nomination is not binding as ultimately the guardian is determined by the Courts according to what it believes to be in the best interests of the child. However, a guardian nominated in a person’s Will is taken into consideration by the Court and is likely to be very persuasive.

If a guardian is appointed, that person will generally be responsible for the long term welfare of the child and usually has all the powers, rights and duties that parents have. Typically this includes being legally responsible for meeting the child’s day to day needs of being housed, clothed and educated, as well as nurturing their long term development.

While relatives of the deceased may help to look after the surviving child, unless they are named as the legal guardian by the Court, they may not be able to access services such as health care if the child needs an operation or to sign legal documents to get them a passport or open a bank account.

When drafting a Will that includes naming a preferred guardian, it is worthwhile considering the financial burden which may be suffered by the person being asked to care for the child.

While an Executor has the responsibility of looking after the deceased parent’s financial affairs, it may be necessary to draft the Will to enable guardians to seek funds from the Executor to cover a specific purpose in relation to the child.  For example, Executors may need to be given the power to grant financial assistance in the form a gift or part payment of a child’s entitlement in the Will, to enable the guardian to extend their house or buy a larger car to look after the child.

It may also be worthwhile to draft a Memorandum of Wishes to provide guidance for the guardian which details what the parent would have wanted for the child. These wishes could cover issues such as schools you would like the child to attend, people you would like the child to keep in contact with, what religious instruction you want the child to receive and the standard of living you would like them to enjoy such as your preferences for holidays.

The guardianship ends when the child reaches eighteen unless there are other circumstances in which case the Courts may extend the term of appointment.

Appointing a guardian to fill the role of the parents if they die can ensure the welfare of the child and give peace of mind as a parent. It can also minimise the likelihood of family disputes in the event that parents predecease their children.

For more information on this article, please call Sandra Mencinskyj at Townsends Business & Corporate Lawyers on (02) 8296 6222.