Becoming a parent is a life changing event. With each child the experience requires parents to re-evaluate and consider all of the new and emerging needs of the family. While most families growing needs are easily identified and met, one need that is often overlooked is the requirement to choose a guardian for their children in the event that both parents die.

The legal guidelines to nominate a guardian are found in the Guardianship of Infants Act 1916 – Section 14. This act allows for the mother, father, or both parents, to assign a guardian for their children in the event of their individual or simultaneous deaths. The appointed guardian is to act jointly with the surviving parent, and also has the right to apply to the court for sole custody of the child if they believe the parent to be unfit.

In NSW parents can name at least one individual within their Will to become legally responsible for their children in the event of their deaths. In planning for their deaths and preemptively naming an adult caregiver to be in charge of the children, the parents can reduce arguments and litigation amongst other family members in the event that the parents are unable to care for their offspring.

However, nominating a caregiver within a Will is not necessarily legally binding. If a family member or close family friend objects to the parents designated guardian, the court can still step in and review the circumstances using the best interest of the child defense. Under these circumstances the court can review the parents’ choice and proceed to interview all of the people involved, including the children, to make the best possible decision for the ongoing care of the child or children.

When choosing a guardian for their children parents should consider the following:

  1. The relationship and bond between the designated individual(s) and the children
  2. The shared values of the guardian and the parents with regard to education, religion and morality
  3. Lifestyle choices of the guardian / guardian’s family
  4. Whether the guardians will promote the children’s relationships with other biological family members
  5. The guardian’s ability to provide a stable living environment financially, emotionally and psychologically

In accepting guardianship of the children the guardian will agree to be responsible for the powers conferred upon them by the parents, as stated in the Will. These responsibilities can include making legal, medical, educational and financial decisions for the well-being of the child. As such, it is imperative that parents talk honestly and openly with the guardians that they are considering, and determine if the elected guardian is ready, able and willing to take on the responsibilities of raising children.

In addition to assigning a guardian, parents might also want to consider setting up a financial Trust for the monetary care of the children. In doing this, it will allow for the parents to designate a Trustee who will be responsible for distributing the necessary finances for the legal guardians to care for the children(s) financial needs. The separation of the financial needs and the physical care needs, provides a safeguard for the monies left for the specific purpose of the care of the children.

While the thought of choosing someone to care for your children in the event of your death is a daunting responsibility, it is necessary for the safety and well-being of your children. Parents who have taken the time to consider the needs of their children and the adult ablest to do as they would do for them, can bring parents and families significant peace of mind.

For further information or inquiries, please contact the offices of Owen Hodge Lawyers. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to call us at your earliest convenience to schedule a consultation at 1800 770 780.