Appointing a Legal Guardian for your children

What is Considered a Legal Guardian?

A legal guardian is someone you appoint to take care of your children in the event of an unexpected emergency. It is someone who doesn’t already have parental responsibility for your children. Examples includes:

• Your parents

• Your siblings

• Your close friends

If your partner 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 on the birth certificate, they can’t be named as a legal guardian.

You’ll have to consider that in the event of an unexpected death, your child’s surviving parent would take full responsibility for them. If there are no surviving parents with parental responsibilities, that is when your guardians would be called upon.

Who Should be a Legal Guardian?

There is a long list of people you could choose as a legal 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 health, safety, and security;

• Making sure that they are getting their education;

• 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 capacity to care for your children as well;

Most importantly, the guardians you choose must be comfortable with the responsibility. 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 them about their responsibilities before including them in your will.

Legal Guardian By Estate

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.

Your Will

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 wisely the guardian you will appoint for your children.

Testamentary Trusts

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.

How to become a legal guardian

To appoint a legal guardian for your children you simply need to create a clause in your Will as part of your estate plan. You also need to tell the person before you appoint them so it doesn’t come as a surprise upon your death.

Online wills are an affordable and easy way to set out your 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.

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.