If you are a parent with young children, a difficult and serious decision is who should take care of your children and have responsibility for their upbringing, health care, education and religious instruction should you die whilst your children are under age.

Why appoint a guardian?

To make sure your children are cared for in the event of your death and by the person of your choice.

You can leave directions and guidance as to how you want your guardian to carry out their responsibilities, either in your Will or a separate side letter.

Without the appointment your family may have to go to Court for authority to look after your children.

If the Court makes an appointment this may not be the person you would choose.

Who can be a guardian?

The guardian will be someone you trust to provide love and care for your children if you are not here to do so, supervise their education and provide the right environment for their happiness and healthy development to adulthood.

This is a very sensitive and exacting issue, but one all parents should consider, discuss and review.

You may consider appointing one person to have responsibility for the day-to-day care of your children and another to look after the financial side of raising your children (known as a trustee), providing income for their day-to-day care or payments from capital for larger items such as holidays, computers, school or university fees or enlarging the guardian’s house.  To avoid conflict and provide objectivity it is often best to have different people acting as guardians and trustees.

If your children are old enough, you may wish to discuss with them who they would like to live with. You must also discuss your choice with your spouse or partner and come to an agreement.

How do I appoint a guardian?

You can appoint a guardian in your Will. This is one of them main reasons why many people make a Will.

It is vitally important to ask your prospective guardian if they are prepared to take on this role and the responsibility BEFORE you appoint them. Failure to ask can lead to problems at a later date.

If you are appointing a guardian who is not a relative it may be sensible to discuss why you are doing so and set this out in the side letter. This could prevent family arguments later and could be produced in court if necessary.

You may wish to appoint a replacement guardian if your first named guardian is unable to act.

How many guardians can I appoint?

You can appoint as many as you like – but it is usual to appoint one.

When should I review the appointment of a guardian?

At MACKS we advise reviewing the appointment of a guardian every few years to ensure the appointment is still a valid one. For example:

Initially you may wish to appoint your own parents/parents-in-law to act, but as time goes on they may not have the energy, ability or stamina to become parents again or cope with boisterous teenagers or they may have died.

It may be you have appointed someone who is no longer able to act because their financial or personal circumstances have changed, or you are no longer in close contact with them or your children’s needs or requirements have changed.

The appointment of a guardian can be changed by making a codicil, a new Will or in your initial Will by appointing a replacement guardian.

Who can appoint a guardian?

You can only appoint a guardian if you have “parental responsibility”.

If you are separated or divorced then the surviving parent with parental responsibility takes on the role of a Guardian. You may not want this. MACKS recommend you detail your reasons for the appointment of your chosen Guardian in the separate letter to avoid bitter and contested proceedings in the children’s Court.

The appointment of a Guardian is one of the most difficult tasks for a parent to contemplate, but if you consider the issues now you will be ensuring everything is done for your children in the event of your death and minimise the impact on your children.

What is the next step?

At MACKS we strongly recommend a face-to-face meeting with one of our specialist solicitors who will be able to explain things in greater detail and advise you on how to use your Will to achieve the appointment of a guardian of your choice.

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