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Appointing a guardian for children
If you have children under the age of 18 years, you should consider appointing a legal guardian for them in your Will.
Why should I consider appointing a legal guardian for my children?
In the event that both you and the other parent of your children pass away while they are under the age of 18, the law requires that someone is appointed to look after them. This person is known as a guardian.
Choosing their guardian is an important decision to make to ensure you are comfortable with who will care for your children.
What does a legal guardian do?
A legal guardian who is appointed to look after your children under 18 will take on responsibilities for longer-term decisions, including:
values and religion
health and lifestyle.
What should I discuss with a potential guardian?
It’s important to have discussions with the person who you are asking to take on this responsibility, if the situation occurs.
Topics to discuss include:
living arrangements (for example, do your children move in with the guardian or does the guardian move into your home, and what happens if guardians are grandparents living in a retirement village, etc)
access to financial arrangements and support
setting up a Trust for your children in your Will
Who should I choose to be the legal guardian of my children?
You can choose one or more people to care for your children as their guardian, but it requires serious thought and discussions with the person/s you are considering for the role.
Who becomes the guardian of my children if I haven’t appointed someone?
If you and the other parent of your children are deceased and there is no guardian appointed for them under a valid Will, then anyone with an appropriate relationship, like a grandparent, aunt, uncle, sibling, step-parent or family friend can apply for guardianship of your children. In this instance, the Family Court will decide who the guardian will be.
What if I want to appoint a guardian who is not my child’s other living parent?
If you wish to appoint a guardian who is not the other parent, then the legal guardian that you appoint will act jointly with that parent. If the surviving parent objects to this arrangement, then your legally appointed guardian may apply to the Court.