When preparing a new Will, the guardianship of minor children is often at the forefront of our clients’ minds. For some clients, it can be difficult to choose who would be the most appropriate person to care for their children. This indecision can hold up the progress of making a Will for clients, perhaps leaving them without a valid Will (and Guardian appointment) for months. This blog post will cover some of the common myths around guardianship of children and the reasons why parents must have a guardianship clause in their Will.
Myth: if we both die, our children’s godparents will look after them
Fact: while many people believe that being chosen as a godparent means they are ‘automatically’ the carer for that child in an emergency, the role of godparent has only spiritual and emotional significance. It is not a legally-recognised position.
If parents die without having appointed a Guardian for their children in their Wills, the children’s godparents are just some of potentially many people who have an interest in the children’s welfare and upbringing. The godparents would have to apply to the Family Court to be validly appointed as Guardians, and the Court may not agree that they are the best people to care for the child. The Court may instead favour a blood relative, such as the children’s aunt, uncle or grandparents.
We understand that godparents can play a large role in the lives of children and often feel part of the family. Children may have a closer relationship to a godparent than they do to an aunt or uncle, particularly when blood relatives are located overseas or interstate. If you believe your children’s godparents would be the best people to care for them on your death, it is important that you document such appointment in your Will.
Myth: if we both die, our family members can sort out guardianship between themselves
Fact: without a valid appointment of Guardian in your Wills, your family members will still need to apply to the Family Court for an order to act as Guardian. Even if your family is not in dispute, and can decide between themselves who is the best person to care for the child, that person (e.g. the child’s aunt) will still need to make such an application. Your family members would therefore incur considerable time, expense and stress going through the Family Court system.
It is much simpler to choose someone who you would trust and appoint them in your Will. It is also important to remember that you can change your Will if and when it is necessary. For example, if you appoint your sister and her husband as Guardians for your children, but your sister then moves overseas, you can amend that provision of your Will with a simple Codicil to appoint a new Guardian. You would not need to sign an entirely new Will. You can also include a provision in your Will appointing a substitute Guardian, if the person(s) you initially chose are unable or unwilling to act. Just one clause in your Will can save your family a world of stress on your deaths, in what would already be an emotional time.
Myth: our teenage children can take care of themselves
Fact: no matter how independent your children are, they still need an adult to act as their legal Guardian until they attain the age of 18 years. Even if your oldest child has attained that milestone, it doesn’t mean they can automatically be the legal guardian of their sibling(s). While a teenage child’s preferences may be taken into account by the Family Court, it would again be up to the Court to appoint a suitable adult to so act. You do have options, however, if you wish for your children to stay in the family home and continue at the same school (particularly to minimise disruption during VCE). We can assist you in tailoring a Guardian appointment clause that gives your Guardian the necessary powers to perform their role but also requires them to give due regard to your wishes.
It is vital that parents of minor children have Wills appointing a suitable Guardian for them in the event of a tragedy where both parents pass away. While considering such a situation and choosing a Guardian can be difficult and emotional, the process of preparing a Will does not have to be. We can assist you with drafting comprehensive guardianship clauses and support you to make the best decisions for your family. Contact us today for a no-obligation discussion and ensure your children are set up for the future.