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What You Need to Know About Legal Guardianship In Australia

Learn about legal guardianship in Australia and its importance in estate planning. Covering all things from how to choose a legal guardian for your minor children, to the responsibilities involved and deciding whether to accept - this blog post is your ultimate guide to the legal, practical and emotional aspects of the legal guardianship role.

Legal guardianship

Looking after family with your Will

When most people think of their Will, they think of their assets, their property and where all this might go after they die.

But thinking about extra provisions for the people you leave behind is especially important if you have minor children. With this in mind, having a guardian appointed becomes a critical aspect of estate planning for families- helping to ensure that young children are cared for in all circumstances, including the case of an unexpected death.

Read on to learn the important aspects of legal guardianship in Australia and how it relates to estate planning.

What is Legal Guardianship?

Legal Guardianship involves appointing someone to act as a legal guardian and make decisions in the best interests of children, if current guardians are unable to, or both die unexpectedly.

Leaving clear instructions about who this person will be is a key way to support family with an estate plan- removing legal loopholes just when they'd be needed the least.

Why appoint a legal guardian?

A legal guardian is one of the most important personal decisions in your estate plan.

Alongside making financial provisions, this component of estate planning is essential to supporting your children if you die suddenly. Despite the shock of this event, a legal guardian in your complete, valid Will can safeguard them against the uncertainty of the future.

In being responsible for the child's finances until they become of age, a legal guardian is also the person responsible for managing their inheritance left in your Will.

Secure approval in court

Writing this person into your Will provides a legal document which will guide proceedings for the appointed family member to take on the responsibility. This ensures all details are complete and valid in the eyes of the law, before (or if) guardianship orders are ever questioned in court.

Peace of mind

Making provisions for your dependent children provides peace of mind that they’ll be nurtured and provided for if you die suddenly. And whilst we all hope the worst won’t occur, appointing a legal guardian is one key insurance to protect those you love the most if it does.

What is a legal guardian responsible for?

Legal guardianship refers to the legal responsibility of an adult to care for a child, as well as the powers to make decisions on their behalf in the same way as their parent would have. This can vary by Australian state, so it's important to consult with a legal professional for tailored advice relevant to you.

Generally however, this role includes decisions related to the child's education, healthcare, and upbringing; as well as all things well being. In the eyes of the law and a nurturing sense, legal guardianship is the ‘parent provision' if current parents or guardians die.

A legal guardian has many responsibilities, including:

  1. Providing a safe and nurturing home for the child
  2. Making decisions about the child's education, healthcare, and other needs
  3. Acting in the child's best interests at all times
  4. Managing the child's finances until they reach adulthood
  5. Maintaining contact with the child's extended family, if appropriate

More than just a legal process, this role encompasses all aspects of what is means to step in as a parent for children left beyond.

Being appointed as legal guardian

If you are asked to be a legal guardian, it is essential to carefully consider whether you are willing and able to take on the responsibility. Done well, it's a big ask. And it's important to consider the various responsibilities and timescale of this role against your own financial, physical or health limitations.

Factors to consider include:

  1. Your relationship with the child and their family
  2. Your ability to provide for the child's physical and emotional needs
  3. Your availability to care for the child
  4. The impact that being a legal guardian will have on your personal and professional life

Declining to be legal guardian is best done when the parents initially appoint the role and are still alive. This creates an opportunity for them to decide on another legal guardian to appoint, without creating stress and uncertainty for the children if the need ever arises for the guardian to step in.

Choosing a legal guardian for minor children

Choosing a legal guardian for your minor children can be a complicated decision. In considering a number of financial, health and time factors, it's not always as simple as appointing your sister, your brother, or even your parents.

And whilst we all hope the need doesn't arise, it's important to have a well thought through legal guardian in place if the worst does happens. Assuming the Will is valid, this will help lawyers ensure a smooth transition and immediate point of contact for the care of any minor children, without the need to deal with additional legal hoops and requirements.

Several factors to consider when choosing a legal guardian include:

  1. The person's emotional, financial and health abilities to provide a safe and nurturing home for your children
  2. Their capacity to have a nurturing relationship with your children and meet their emotional needs
  3. Their values and beliefs, and whether they align with yours (including religion)
  4. Their financial stability and ability to provide for your children's needs
  5. Their age and health, as well as their willingness to take on the responsibility

How to appoint a legal guardian

Appointing a legal guardian forms an integral part of writing your Will. Whether you choose to write your Will online or with a traditional lawyer, it's important to seek legal advice to ensure that your Will is valid and the appointment of your legal guardian will be recognised by the Courts if the worst does happen.

Thinking ahead

An important part of appointing a legal guardian is being specific. Leaving money to help support the additional costs of upbringing can also help loved ones taking on the role, as well as benefit the children directly.

Whilst circumstances surrounding a death might vary, it's always important that you communicate upbringing wishes with the legal guardian as well. This can help ensure that your wishes for your children, and any medical or personal decisions surrounding them, are aligned with what you would have chosen.

At Safewill, our online platform provides easy chunked tools to appoint a legal guardian and make personal stipulations surrounding your family, funeral and assets left behind. You can even grant powers of attorney to further protect your estate and those you love, if you do lose capacity.

To Wrap Up:

Ensuring you have appointed a legal guardian is essential if you have minor children. Whilst we all hope that the worst never occurs, this appointment saves time, money and stress if you die, or lose decision making capacity through an acquired brain injury or sudden mental illness which renders you unable to look after your children.

On top of safeguarding your entire deceased estate, guardianship orders ensure that an agreed and well suited person is ready to step in to support your children. Picking this person in advance ensures that they are best suited to create a nurturing environment for your children, and take on all parenting services.

How Safewill can help

Safewill provides a flexible, affordable and secure platform to write your Will and appoint your legal guardian- all in one easy and online process.

Our team of specialist lawyers check every single Will to ensure that it is legally valid, and are available to provide specialised services and advice that is tailored to you. With this in mind, our lawyers grant immense peace of mind that your personal, parenting and estate wishes are secure for court approval.

Write your Will today and safeguard the security of your family. It's quick, it's easy and the benefits last (longer than) a lifetime.

Call us on 1800 10 33 10 or get in touch via live chat, to get started now.

Last updated 28th April 2023
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Hannah Comiskey
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Safewill is an online service providing streamlined forms and information. Safewill is not a law firm or a substitute for a lawyer’s advice about complex estate planning issues.