Who will look after my children when I die?
You might think the main purpose of a Will is to set out who inherits your assets when you pass away. But your Will can also deal with other important matters, including who will look after your children.
All states and territories have legislation allowing you to appoint a ‘testamentary guardian’ in your Will. This person will make decisions about the care, welfare and development of your children while they are under 18 years of age. These decisions can include the children’s health, education, religion and living arrangements – whether that’s with the guardian or someone else.
If your Will does not appoint a guardian, alternative informal arrangements may be made, but they are not legally binding. Appointing a guardian gives your wishes legal backing, removes uncertainty and ensures your intentions are clearly understood.
It’s important to note that orders made under the relevant Family Law Act will usually override an appointment of guardian under a Will. These orders may refer to ‘parental responsibility‘ instead of ‘guardianship‘, but the two concepts are similar. Even so, appointing a guardian in your Will can be a useful – and even vital – part of your estate planning.
South Australia
In South Australia, Section 13 of the Guardianship of Infants Act allows a parent to appoint a ‘testamentary guardian’ in their Will to care for their minor children. If the parents are alive and in a relationship, this appointment usually only takes effect when both parents have passed away.
However, a parent can choose to appoint a testamentary guardian to act even if the other parent is still alive. In that case, the testamentary guardian may act jointly with the surviving parent. If the surviving parent does not agree with this arrangement, they can apply to the Supreme Court objecting to the appointment. The Court can then decide if one or both people will be guardians. Alternatively, if an application is made under the Commonwealth Family Law Act about care for children, that decision would take precedence.
It is also possible that each parent’s Will might appoint a different testamentary guardian. In this case the Guardianship of Infants Act provides that both appointees will act as joint guardians once the second parent passes away.
Western Australia
The Western Australian Family Court Act allows a “person with parental responsibility” to appoint a testamentary guardian in their Will. However, unlike in South Australia, only the guardian named in the Will of the last surviving parent (or person with parental responsibility) will have that power.
This means the appointment of a testamentary guardian in the first parent’s Will does not take effect. The guardian only becomes active after the second parent passes away.
If an objection is made to the Court about a person’s appointment as testamentary guardian, the Court will consider what is in the best interests of the child. The Court can remove the guardian and appoint someone else if needed.
Adults in need of guardianship
Once a child turns 18, legal guardianship by a parent or testamentary guardian comes to an end. However, if an adult is incapable of dealing with their own affairs, then it may be appropriate for another adult to step in.
In some cases, informal support from family or friends may be sufficient. But if this is no longer suitable or if a dispute arises, an application to the relevant state Tribunal may be necessary to formally appoint an “administrator” (for financial matters) or “guardian” (for health, accommodation and lifestyle decisions).
Here’s some more information about circumstances when an administration or guardianship order may be made for an adult:
South Australia – https://www.sacat.sa.gov.au/case-type/guardianship/what-is-a-guardianship-order
Western Australia – https://www.sat.justice.wa.gov.au/A/appoint_a_guardian_or_administrator.aspx
Who should you appoint?
All estate planning decisions can be emotional and difficult. Choosing someone to care for your children when you die is no different. But making a thoughtful, informed decision to appoint a testamentary guardian will give you peace of mind – knowing your children will be cared for by someone you trust.
Need help appointing a guardian or updating your Will?
TGB Lawyers can guide you through every step of the estate planning process. Contact us today to make sure your wishes are clearly documented and legally protected.
T: (08) 8212 1077 (Adelaide) or (08) 9211 5800 (Perth)