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What happens if I die before my child turns 18?

If one parent of a child under 18 passes away then all parental rights will typically pass to the surviving parent (subject to any court order) however you can appoint a guardian under your Will to also care for your child. Typically however, the courts will favour the child’s surviving parent over any appointed guardian over a Will. Therefore, if you do not wish for the surviving parent to obtain any guardianship rights in respect of a child then you need to seek legal advice.

If both parents have passed away and have a guardianship appointment in their Will which the guardian accepts then the guardian will typically act and be accepted as the guardian of your child. Often, this appointment alone can reduce any conflict between the family left behind. The appointment also assists to clarify the legal position of guardian for your children.

If both parents have passed away and have not made a guardianship appointment in their Will then any person can make an application to the court to be appointed as a guardian. Particularly for children with separated parents or very strong willed grandparents (or other family members) this can result in a significant and costly (both financially, emotionally and to the relationship between all involved) exercise.

If both parents have passed away and have not made a guardianship appointment in their Will AND no person wishes to make an application to care for the child or be their guardian THEN the child may pass into the care of the state. 

In our view, appointing a guardian under your Will or at least giving it very careful consideration as part of your estate planning process will save much heart ache, worry and angst for the family you leave behind in the event of your death.

What role does a guardian take on?

A legal guardian is an adult designated to care for minor child in the event both parents die before that child reaches adulthood.

A legal guardian takes over the duties as the child’s parents until the child turns 18 years of age, which includes the ability to make decisions on:

  • Day-to-day care and control of the children;
  • Making decisions about the children’s upbringing (including where they live and go to school), education, health and welfare;
  • Usually a guardian will also be one of the trustees for the property and money parents have left for their children in their Estate. Such assets will be held by the trustees until the child/children reach an age that their parent/s decided is appropriate for the child/children to deal with the money themselves, without supervision; and
  • They will also have a profound influence on the moral, philosophical and religious beliefs of the child/children, which will vary with age.

How do I appoint a guardian for my children?

  • You can appoint a guardian via your Will.
  • Also, should you have any specific wishes as to how your children are to be raised (such as education, holidays etc), you can create a Memorandum of Wishes, which is a legal document used to provide additional guidance to your guardians.

Who can appoint a guardian and who can I choose?

  • Both parents are able to appoint guardians and guardianship will typically only come into effect in the event that both parents are deceased.
  • Any adult of your choice can be nominated as a guardian for your children, regardless of whether or not they are actually related to your children.

What should I take into account when appointing a guardian?

  • No-one is going to love a child like their parents.
  • No-one is going to raise a child exactly the way their parents would.
  • Deciding who will raise their child in their absence is one the toughest decisions parents can face.
  • Many parents say the first step is to admit that no-one is good enough.
  • Once they get past that, they can sit down and talk over the pros and cons of each person they are considering to be the guardian of their children.
  • Here are a few things to think about while going through this process:
    • The location of the guardian. Do they live in the same area, so that the children can continue to see their friends, go to the same schools, play in the same sporting teams etc? If the guardian lives in another area, the upheaval of the children with changing schools, making new friends, changing sports etc, when they are grieving the loss of their parents, may have an even bigger and lasting effect on them.
    • Does the guardian have similar moral values, child raising philosophies and religious beliefs as you?
    • The age of the children. If they are teenagers, perhaps they could be consulted about who they would want to look after them.
    • Who is most able to take on the responsibility of a caring for a child — emotionally, financially, physically? Whilst Grandparents love having their grandchildren around, if they are elderly, having the grandchildren on a permanent basis may be very tiring and difficult. Generational age gaps can be difficult to overcome.
    • Grandparents are generally at a stage of their lives where they are planning for retirement, planning that “trip of a life time”, and enjoying the slower, quieter and financially comfortable time of their lives. Taking on the role of full time guardian for their grandchildren may be too onerous for them but their sense of obligation may weigh heavily on them.
    • If the person is single with no children, becoming the guardian of young children may not fit in with their life plan and may hinder their chances of entering into a long term relationship with someone. If that person is going through or has a history of relationship/marital difficulties, having the responsibility of raising more children may cause their relationship to irrevocably break down and then cause more upheaval for the children.
    • Does the person you are considering have other children? If so, would your child fit in or get lost in the shuffle? Will their house accommodate the extra children, or will they need to renovate, extend and/or move? If they already have children, will extra children mean that they will need to upgrade their vehicle to a bigger vehicle? Do the children currently undertake sporting or extra curricula activities which are expensive, or time consuming, and would be too much of a burden on the guardian/s?
  • Once parents have narrowed the list to a few key people, they should talk to the intended guardian/s about how they would feel about being named guardian of their child/children. Perhaps one person will express a clear desire to play this role, or a person they were considering may not be willing to take on the responsibility. These conversations may reveal feelings and attitudes that will help parents make their final decision.
  • Guardianship can be flexible over time. If a person really wants their parents to be the guardian of their children now but fear that they will grow too old to handle the job, they can specify that they be designated guardians for a set period of time (until your child is 10, for example), after which responsibility passes to a sibling or friend. A switch like this can be difficult on children though, so people need to carefully consider the ramifications.
  • The person selected as guardian may have a huge task ahead. They would have to meet the child’s emotional and physical needs and raise that child to be a competent and fulfilled adult.

Can I appoint two guardians or joint guardians?

  • Yes, you are able to appoint more than one guardian. Joint guardians will be legally considered to have equal authority over the children which may result in an unwanted clash over the welfare of the child. It would be advisable to take this into account if you are considering joint guardians.
  • A more favourable alternative to joint guardians are ‘substitute guardians’. Substitute guardians are there to fill the position, should your original choice of guardian be unable or unwilling for some reason, to serve their role as guardian. Substitute guardians are also appointed via your Will and it would be wise to also follow the same procedures when considering your substitute as you did your first choice of guardian.

Is it guaranteed through my Will that my children will be cared for by my appointed guardian?

  • Generally, your children will be looked after by the guardian you have appointed, and your wishes seen to, as long as you have outlined them clearly. However, your instructions outlined in your Will regarding guardianship may not be legally binding.
  • The provisions of the Succession Act in Queensland permit the appointment of guardians but the provisions of the Family Law Act in Australia conflict with the provisions of the Succession Act and may trump the Succession Act if a decision is made under that law.
  • Generally speaking, the Will provides the appointment and will usually be followed but it can be overturned under the Family Law Act in the Court if someone disputes the appointment.
  • In the event that your appointed guardian is unable in some way to act as guardian, at the time of your death, the Family Court will act to appoint a substitute guardian. The Family Court will only intervene if it feels it is necessary. Maintaining the children’s best interest is always the Courts main objective.
  • Having appointed a suitable substitute guardian can help avoid such situations.
  • By appointing a substitute guardian through your Will, this allows you to still have an input into what goes on in the event that your appointed guardian is unable to act. This does not change the fact that your wishes are still not legally binding.
  • If you are separated from the other parent of infant children, it is generally recommended that as part of any discussions or negotiations with your estranged spouse about the welfare of your children, that you include a discussion about testamentary guardianship and have a consistent appointment in your respective wills so that there is no confusion about the intentions of either parent about the arrangements that they want to be put in place for the care of their children until they turn 18.
  • Each parent has a legal right to care for the child and this will generally trump an appointment in the Will while one parent is still alive and be downright confusing if differing appointments are made under each Will (and may necessitate the intervention of the court). It is best to try and have a consistent solution here.

Will my guardian have control over administrating my estate?

No. Your appointed guardian will not have control over administrating your Estate. Administration of your Estate will be left to the executor that you have nominated in your Will.

It would therefore be advisable to take into account whether or not your appointed executor/s and guardian/s will be able to co-operate and work together effectively. This minimises potential difficulty between them and other family members whilst ensuring the transition is as smooth as possible for the children.

Is my guardian then able to retrieve funds from the estate to support my children?

This is usually already outlined in a section within your Will. Within this section, you can enable trustees to provide advance income and capital to help immediately with maintenance of your children. Generally, the payments are set up to go directly to the guardian.

Once your child turns 18, the payments can then be transferred directly to them via the trustee.

What do I need to do if I want to make additional provisions for my children or for the guardian?

Any wishes to provide additionally for either your children or guardian should be outlined in your Will. Additional provisions can provide very practical solutions to the difficulties that may arise in such a situation.

Additional Provisions Could Include some of the following:

  1. A gift of money to the guardian to be used practically for a new car or home extension. This added financial convenience can relieve some of the burden on the guardian.
  2. Should you wish for the guardian to stay in your family home with your children, you may want to consider allowing them to live in your house rent free.
  3. You may wish to financially reward your guardian for their endeavours. This could be achieved through a gift of a lump sum or via regular payments from the trustee of your Estate.

What are the legal implications of being a guardian?

  • The legal implications of being a guardian vary according to the laws within each State. For the purposes of superannuation (depending on the state), the death of a member usually means that the funds are distributed amongst the ‘dependents’ of the deceased. Your children may be entitled to a share of the deceased guardian’s Estate if they are still financially dependent on their guardian.
  • In matters of making a claim on a deceased Estate, your children may be entitled to make a claim if they are still financially dependent on the deceased at the time of their death.
  • Hence it is of utmost importance to ensure that your children are well provided for from your estate to ease the burden on both your child and appointed executor.
  • A guardian should also obtain legal advice on these issues when carrying out their own Estate planning.

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