A guardianship clause in your Will is your opportunity to nominate who will look after and care for your children when you die. The guardianship clause in your Will is an indication of your wishes only and as such is not binding. The person you have appointed as your guardian can be challenged by an interested person seeking a Parenting Order.
Something a lot of clients seem to struggle with is naming the guardian of their children, a great way to do it would be to make a list of the following:
- What are your values?
- What are your children’s critical needs?
- What are the logistical preferences?
- Who are the available people?
Once you have listed the above you should match the people against the first three points and see who is best suited for the position. If you are in a relationship, it would be a good idea to do the above exercise separately and then compare your notes to see if you are on the same page.
If you believe there is a family member who for whatever reason is not a suitable or safe person to have as the guardian of your children, we would recommend doing a separate letter stating who they are and your reasons for not selecting them. E.g. ‘in raising my children I would never have left them alone with my aunt Jane Smith for X Y Z reasons’.
When selecting someone to be the guardian a lot of people are thinking into the future as opposed to who would be best suited for the role in the now. If the best person to appoint is your mother, who might be aging, appoint her as the guardian as she is the best person for that role in today’s circumstances. You can always add layers of guardians, so if your parents are unable or unwilling to act you can name an alternate guardian. If you have older children, it is worth asking them who their preference is for the guardian as children who are over a certain age have a say in the family court as to who is appointed as their guardian.
We recommend writing a letter of wishes or completing our Guideline for Guardians document as an additional document to complement your Will and go into details of how you would like your children to be raised, e.g. type of school to attend, relationships with the extended family, travel.
Contact us now to begin your estate planning and you will receive a complementary Guideline for Guardians document to fill in.