How to choose and appoint a guardian for minor children

You can’t control what happens in your day. But you can create a contingency plan in case something were to happen to you and/or your partner. While this may not be a pleasant thought, it is worth taking some active steps to ensure that your wishes for your child are formally documented.

If there are no specific written instructions in a will and in the event of the death of both parents, any person with sufficient interest (i.e. grandparents, aunties or uncles) can apply for guardianship of your children. In such situations, the Family Court decides who should become the legal guardian based on the best interests of the child. This is not ideal as the person chosen by the Family Court may not necessarily be the person that you would choose to care for your child.

In the event of a death of one parent, the surviving parent will usually be the legal guardian of the child, unless there are circumstances to reflect that this is not in the best interest of the child. Such circumstances may include: a restraining order against the surviving parent, incidences of domestic violence perpetrated by the surviving parent or a history of drug or alcohol abuse by the surviving parent. If you’re in this situation, you should seek the advice of a professional will writer to safeguard your children.

You can formally appoint a guardian for your minor child in your will.

It is very important to discuss your intentions, obtain consent and discuss your expectations with the prospective guardian. During this discussion, it’s also a good idea to share the set of guidelines that you have prepared. Read more about creating a set of guidelines for the prospective guardian here.

Other things to consider, beyond the selection and appointment of a guardian, are the details of how this may play out.

For example, whether your child will move in with the guardian, continue living in the family home, or in instances where the nominated guardians are the grandparents who are living in retirement villages, the prospective living arrangements for your child.

A nominated guardian should not suffer any financial burden or loss whilst acting in the role. Practice tends to be that the guardian will have access to the child’s share of the estate, at the discretion of the trustee.

Therefore, it makes sense to have two different individuals acting as executor/trustee of your estate and guardian of your child respectively. The executor/trustee of your estate will be in charge of distributing the money to your child’s guardian in accordance with the terms of your will. The guardian of your child will be responsible for making lifestyle decisions for your child. This seeks to avoid conflicts of interest or any potential misconduct.

You could appoint the same person to fulfil the role of guardian of your child and executor/trustee of your will if you have complete trust in them. However the nominated person should preferably possess reasonable financial acumen.

Once you have completed your will, you should consider the individuals who should have access to your will and/or be made aware of its existence. This is a very personal decision and one for you to decide.

You can share a copy of your will with anyone you choose: your appointed guardian, family members, friends, religious leader, accountant or even your child.

If you’re concerned about leaving your original will in your family home, the The Victorian Will and Powers of Attorney Registry is a great alternative option. It is managed by State Trustees. Being a government owned business, our facility provides secure and reliable storage at no cost to Victorians. Learn more about the Will and Powers of Attorney Registry and how you can lodge your will for safe keeping, no matter where or how it was written.

It is important to realise that if the worst case scenario were to play out, the Family Court would make the final decision about who becomes the guardian. And, depending on the age of the minor children, the Court may take into consideration of their wishes (especially after 12).

Ultimately the decision is made for the best interest of the child/children. However, a will is a highly respected document. Providing your will can be found and is valid, the wishes you outline, in most cases, would be held in high regard in the Court.

A will is the only legally valid document accepted by law as a person’s final wishes. Making a will, even if you don’t have children or a partner to look after, is a great way of making sure everyone knows exactly what you want after you die.

You can use our Online Will to produce a simple will document in as little as 30 minutes. Or, you can speak to us by video or in-person with a Will Appointment. To learn more, reach out to us on 1300 138 672 or fill out a contact form today!