A Will is a legal document that reflects how you would like your estate to be distributed, who you would like to administer your estate for you, and who you would like to care for your minor children in the event there is no surviving parent. If you do not have a Will in place appointing a guardian for your children, you will have no input in who will raise your children if you were to pass away.
Although unpleasant to think about, choosing someone to care for your children in the tragic circumstance something were to happen to you, is necessary. In the event of the death of one parent, the surviving parent will continue to be the legal guardian of the children unless circumstances suggest this is not in the best interests of the child (for example where, against the surviving parent, there are existing court orders removing parental responsibility, restraining orders, domestic violence or a history of drug or alcohol abuse). If there are no instructions in your Will as to who you would like to be guardian of your children, any person with a sufficient interest may apply to the Family Court for guardianship. To avoid this situation, you must appoint a guardian.
By specifying in your Will who you would like to be guardian of your children, you are making a legal appointment. This is a decision that you should consider very carefully and discuss with the elected guardian prior to making your Will. You may appoint more than one guardian, as well as a substitute guardian. When making a decision about who should be guardian of your children, some things you might like to consider are:
- the age of your children and the prospective guardian
- the current relationship between your children and
- the prospective guardian
- will the guardian be able to provide your children with a stable home environment
- will the guardian respect your wishes for how you would like your children to be brought up and cared for
- is the guardian willing to take up the role and are they physically, financially and emotionally capable
You might also like to consider the wishes of your children, depending on their age.
In your Will you may set out guidelines or a statement of intentions as to how you wish your children’s inheritance to be used prior to your children turning 18. For example, you might wish to set aside funds for your children to travel or for education. You might also like to ensure their guardian is not out of pocket. By giving the executor of your Will the power to advance money to your children’s guardian for this purpose, you are protecting your children’s best interests. Although it is possible to appoint the same person as executor of your Will and guardian of your children, it is advisable to choose different people for these roles or to appoint a co-executor to avoid any potential conflicts of interest or misconduct.
It is important to note that even if you do have a Will in place appointing a guardian, a person with sufficient interest may challenge the appointment and apply to the Family Court for guardianship of your children. If this were to happen the Court would make the final decision about who becomes guardian of your children “in the best interests of the child”, taking into consideration any directions you left behind and potentially the wishes of the children (depending on their age).