If you are a parent of child who is under 18 years of age, it is important that you seek legal advice on creating a Will that provides for their future. A large part, and sometimes the most difficult part of this process involves making decisions about who will be the Guardian of your child should you pass away. How you deal with this matter now, could significantly impact your child in the future.
What happens should a Guardian not be appointed?
If one parent passes away leaving a child under the age of 18 years, typically most parental rights will pass to the surviving parent, subject to any court orders. However, you can still appoint a Guardian under your Will to also care for your child. It is most likely that if an appointment other than the surviving parent is made and challenged, the courts will favour the child’s surviving parent over any appointed Guardian over a Will. Primary care does not automatically pass to a surviving parent if you are separated however.
If both parents have passed away leaving a child under the age of 18 years and have appointed a Guardian in their Will and that Guardian has accepted the appointment, then the Guardian will usually be accepted as the Guardian of your child.
If both parents have passed away leaving a child under the age of 18 years and have not appointed a Guardian in their Will, then any person can make an application to the court to be appointed as a Guardian.
If both parents have passed away leaving a child under the age of 18 years and have not appointed a Guardian in their Will and no person wishes to make an application for Guardianship, the care of the child may pass to the state.
Why Appointing a Guardian Matters
There are many reasons why appointing s Guardian in your Will is important. Some of these include:
Your child’s well-being – The main reason to appoint a Guardian is to protect your child’s well-being. Without appointing a Guardian, the court may have to decide who will take care of your child, which may not align with your wishes.
Peace of mind -Knowing that you have chosen a trusted individual to care for your child should you pass away can provide you with peace of mind. It eliminates uncertainty and ensures that your child’s needs are met in accordance with your wishes, values and parenting philosophies.
Family unity – By appointing a Guardian in your Will, you may be able to prevent family disputes or disagreements about the care for your child.
Continuity and stability – By appointing a Guardian, you are allowing your child to experience as little disruption to their life in what is already a difficult time.
How to appoint a Guardian
There are several steps in appointing Guardian which you need to be aware of.
Discuss with potential guardians – This is the most important step in the process as you need to have open and honest discussions with any potential guardians as you need to ensure that they are willing and capable of taking on this responsibility and the care of your child should you pass away.
Considerations – You need to carefully think about your child’s personality, preferences, schooling and specific needs and ensure that any potential guardian can provide these in a loving and stable environment.
You will also need to take into account finances and the cost of raising your child and whether you Guardian will be able to meet these needs. These costs can be dealt with in your Will.
Seek legal advice and make a Will – By obtaining legal advice and assistance to make a Will which includes the appointment of a Guardian, you are ensuring that it has been made correctly and in accordance with the requirements for a valid Will.
Review – We recommend that you regularly review your Will and who you have appointed as Guardian to ensure that your wishes are still being met. If necessary, you may need to update your Will to reflect any changes in your circumstances.
In essence, appointing a Guardian in your Will is essential in estate planning, especially if you have dependent children. While it may be a difficult decision, it is a necessary one to ensure that your child’s future is secure and that they are placed in the care of someone you trust.