If parents are deceased, who has the right to make decisions for the child?

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Wills aren’t just for assets

Wills certainly allow for the direction of assets, but they can do much more. Specifically, for this subject, they allow for the appointment of a Testamentary Guardian.

Should a parent die, then all aspects of care for a child under the age of 18 fall to the remaining parent. In circumstances where the remaining parent has known issues of drug use or unreliability, it may be that care is shared between the remaining parent and a guardian nominated in the deceased parent’s Will.

Should both parents pass or be unavailable due to critical injury or incarceration, perhaps due to family violence, then responsibility falls to an appointed testamentary guardian. This will often circumvent arguments between older siblings, overzealous grandparents, and well-meaning but inappropriate relatives from all trying to buy into the cause.

Further, a Memorandum of Wishes is a legal document that can provide clear guidance on many important aspects of care, enabling parenting wishes to be respected.

The full and proper care of a child involves, but is not limited to:

  • Place of living, food, clothing, and loving care
  • Education, personal development, and guidance on ethics and moral standards
  • Medical attention

Choosing a guardian

 A guardian may be related to the child but doesn’t have to be, and may be a close and trusted friend. It is important that great care is taken with the choice in terms of willingness to accept the role, financial wherewithal, geographical location, personal circumstances, and child-raising ideals. Furthermore, at time of accepting the role, the guardian may be eminently suitable, but changes over the passage of time may make re-evaluation desirable, in which case a new guardian can be nominated.

What if a Testamentary Guardian hasn’t been nominated?

 The care of children in circumstances where there is no guardian nominated comes under the jurisdiction of the Federal Circuit and Family Court of Australia which is in turn guided by the Guardianship of Infants Act (NSW) 1916, and the Family Law Act 1975. Nevertheless, the sole guiding principle of the Court is to provide solutions that are in the best interest of the child, and in this their deliberations are non-negotiable.

A person who is a non-parent, but who has a significant interest in the care of a child may make an application to the Court for orders that give them guardianship responsibility. Since time is of the essence in these matters and both the wider family and the children themselves may be facing extraordinary challenges, the Family Court has established a Critical Incident List. This list is administered by the National Assessment Team and, provided all aspects of the application are in order, they work to have the case before the Court in 7 business days.

In summary, the care of a child until the age of 18, in the event of death or other incapacity of a parent falls to:

  • A surviving parent
  • A Testamentary Guardian appointed in the parents’ Wills
  • A person with significant interest in the child who makes successful application to the Court
  • A person or facility determined by the Court to be in the best position to care for the child – that is, care by the State

It seems obvious that where there is no surviving parent, a guardian diligently and carefully chosen ahead of time by the parent(s) is the best way to avoid angst and heart-ache. Empathetic and caring legal advice on the best way to achieve this is vital should unexpected tragedy occur.

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