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Anyone making a will who also has children needs to consider how they will be provided for in this important legal document.
This includes consideration of who will care for and raise children under 18 if the willmaker dies.
A guardian who is appointed in a will is given powers, rights and responsibilities to make decisions about a child’s care, welfare and development. This person is called a ‘Testamentary Guardian’.
This testamentary guardian can make important life decisions on matters such as the education, health, leisure and religious instruction of the child, among other matters.
It is important to understand that the appointment of a testamentary guardian does not necessarily mean a child will live with that person. Living arrangements and daily care of the child remain the responsibility of the other parent or whoever is named in this role in Family Court or Federal Circuit Court orders.
A person appointing a guardian in a will should be aware that under the Family Law Act, the Court retains a discretion to appoint another person (instead of the testamentary guardian) if they deem that to do so would be in the best interests of the child.
Why would the Court exercise its discretion?
If a person is appointed as a child’s guardian in a will, they must exercise their powers and discharge their responsibilities jointly with a surviving parent of the children, or with another guardian/s, if appointed.
A surviving parent (or another close family member) is able to make an application to the Supreme Court to remove a testamentary guardian and have the Court decide on the ‘best interests of the child’ test.
In situations where parents separate or divorce, a conflict can emerge between a Testamentary Guardian and the surviving parent. The Family Law Act provides that each parent of a child who is under 18 has parental responsibility for that child, irrespective of any change in the relationship of the child’s parents.
In this situation it is likely that the provisions of the Family Law Act will take precedence over Queensland law, meaning that if the surviving parent has not lost their parental rights through a Court order, their decisions and care of a child will be prioritised over a testamentary guardian.
Legal advice should be sought if this situation applies to your family law case.
What should be taken into account in appointing a guardian in a will?
Before making the important decision of appointing a guardian of children in a will, a parent should take into account:
- the relationship between the proposed guardian and the child;
- the nature of the relationship between the guardian and the proposed executor of the will;
- the location, age and health of the proposed guardian – is it wise, for example, to appoint elderly parents as guardians?;
- whether appointment as a guardian will affect that person’s income, finances and lifestyle, so that they are not able to provide the care you envisage for the children;
- is a Statement of Wishes necessary to provide additional guidance on the raising of children under 18 in the event of the testator’s death?
The need for guidance by legal professionals
A will is meant to be a clear and unequivocal expression of a person’s wishes of what should happen after their death.
For that reason, it’s important to get advice from legal professionals with proven experience in creating a will. The appointment of a guardian of children in the will is obviously a particularly important decision, more so when the parents of the children are no longer in a relationship.
The appointment of a guardian, ideally, should be an agreed decision between estranged or separated parents so that their wishes for the children are consistent between them in the event of their death/s.
Lastly, it should be remembered a will can – and should – always be updated if circumstances change.
Call South Geldard Lawyers today if you have questions about guardianship.
It is important to seek specific advice regarding your circumstances as this fact sheet provides general information only and does not constitute legal advice.
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