A legal guardian is someone you appoint to take care of your children in the event of an unexpected emergency, involving both parents. This person does not currently have parental responsibility for your children, and could be a family member or friend, such as:
Your close friends
If your partner is not a biological parent and does not have parental responsibility for your child, you may also name them as a legal guardian. However, if you were already married when the child was born, or they are named as a parent on the birth certificate, they can't be named as a guardian.
In the event of an unexpected death or health disability, your child's surviving parent would take full responsibility for them.
If there are no surviving parents with parental responsibilities, that is when guardianship would be called upon to support their best interests.
There is a long list of people you could choose to appoint as guardian. You could choose your parents, siblings, close relatives, or even close friends.
It is important that the legal guardian you choose can carry out the following responsibilities:
Raising your children until they reach adulthood;
Give them a safe place and environment to live;
Maintaining and meeting all their needs, including their personal, lifestyle, health, safety, and security;
Making sure that they are getting their education & medical needs met;
Any other responsibility that a parent would normally have.
Additionally, you may also want to consider a few other questions to help pick your legal guardian, they include:
If the legal guardian shares similar beliefs to your family - whether that'd be religious, cultural, or social beliefs;
If your children, under the legal guardian's care, could still do their regular activities such as their school, extra-curricular activities, and hobbies;
If the legal guardian has children of their own – if they have the the ability to make room and spare finances to care for your child, or children, as well;
Most importantly, the guardians you choose must be comfortable with the power of making decisions, and the responsibility of taking care of your children.
Even though there is a very small chance that they would ever be called upon, it's always important to be prepared and have a frank conversation with this appointed person about their responsibilities, before you appoint a guardian and include them in your will.
Also spend time discussing various lifestyle factors on how, under the circumstances where they become the guardian of your child, you would like them to support the future of your child.
Whether it's supporting their interests, health concerns or medical needs- it's important the person appointed as guardian would support your child in the way that best aligns with their upbringing and best interest.
Appointing a legal guardian through a good estate plan will ensure that your wishes for your children will be carried out when you die.
An estate plan outlines what you want done with your assets after your death, and can include your will, a testamentary trust, or superannuation.
This also allows you to organise your financial and legal affairs in a way which benefits your children, or the person assigned to be their guardian.
It is your Will that can cover who will look after your children following your death. The documents that you can choose from will depend on your situation. As mentioned above, you want to choose guardianship wisely to prepare best for if the worst circumstances occur.
This is a trust that is written in your Will and comes into effect upon your death. The trustee named in your Will is the one who will look after your assets until your beneficiaries can get them.
You can name your children as the beneficiaries. You may want to consider setting up this trust if you have children under the age of 18 and are not yet able to take full responsibility of your assets.
This ensures your financial affairs are in order for when they reach decision making capacity, and can help their guardians best support them through life.
Specific gifts in the form of a trust can also be a meaningful way to support your children on top of a guardianship order- helping with either money, property or emotional support under difficult circumstances.
To appoint a legal guardian for your children you simply need to create a clause in your Will as part of your estate plan. This forms the legal document which validates the guardian appointed. You also need to tell the person before you appoint for guardianship so it doesn't come as a surprise upon your death, and that they have the ability to do so.
Guardianship makes provisions for who to contact to take care of children, if the worst case circumstances arise and their parents die. This grants decision making capacity to this person to act in the benefit of the children.
As this will cover all medical decisions, lifestyle and personal matters for your children- it's important this person has the capacity to take on the role.
It's also important the guardian appointed has beliefs aligned with your own- as this can provide a smoother transition for your children at a difficult time. Whether it's a family member or friend, this person should also have the money, time and property space to support your children.
It's important to contact this person before they are appointed for guardianship, and cover all these lifestyle and personal matters to ensure guardianship order will reflect your own decisions and values in your children.
Online wills are an affordable and easy way to set out your own final wishes. You can use the online Will service offered by Safewill, where you will receive assistance throughout the process from our customer support team.
We allow you to establish a guardianship order, organise your personal matters and appoint someone to take enduring power over your own financial or medical decisions if physical or mental illness mean you lose capacity.
From personal decisions to medical treatment, as well as supporting your children- appointing a representative person can provide protection for the future for you, and your family.
During this process you will need to answer a few simple questions prepared by our Australian Solicitors to explain your reasons for making your decision. The legal advisers at Safewill will check it over to see that everything is clear and valid before the courts. You'll then be able to print it, sign it, and store it somewhere safe.