Whether you have just welcomed your first child, plan on expanding your family or have teenage children, it is important to consider who would take care of your children should you and your partner both be unexpectedly incapable of doing so.

If one parent passes away, the surviving parent automatically becomes the sole legal Guardian of the biological children of the relationship.  However, if both parents pass away, the process of appointing a legal guardian for your children is made much easier if the Will provides guidance.

Whilst a difficult decision to make, choosing Guardians is best discussed and decided when working through your estate planning.  That way, specific provision can be included in your Will regarding the guardianship of children.

In considering who to appoint as Guardians, it is helpful to turn your mind to whether your potential Guardians have:

  • Children of their own or are planning on having children of their own and the relative ages of your children and their children;
  • A relationship status or living situation which may impact upon their ability to care for your children;
  • Have similar beliefs and values to you and share similar priorities (such as lifestyle choices, medical treatment decisions, religion, choice of school);
  • A home locally or whether your children would need to move to a different town or school and whether this accords with your wishes; and
  • Already formed a bond with your children.

Once you have considered who you might appoint as Guardian of your children, it is helpful to discuss your wishes with the potential Guardian to ensure that they would be happy to take on this role, if necessary.  There are also important things you may wish to discuss with them, including where they might live with the children and how they would raise your child in your absence.

A Guardian is usually reimbursed for expenses relating to the care of your children from your estate.  As such, it is also prudent to give serious consideration to whether you wish for the Guardian to be the Executor of your Will (which would see them potentially have unfettered access to funds in your estate) or whether you wish to appoint an independent Executor who would be able to monitor the expenses claimed by the Guardian.

Our experienced team of lawyers can assist you in planning for your children’s care should you and your partner pass away and assist you to work through who might be best suited to the role of Guardian to ensure you are comfortable with the care of your children should the unexpected occur.

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