If a couple passes away before their children have turned 18, then those children will need a legal guardian. The legal guardian will take over parental responsibility, including the day to day care and duties of a parent.

How to Appoint a Legal Guardian

A Will can include a clause to appoint a legal guardian for minor children. It is important that both parents appoint the same legal guardian via their Wills to avoid any conflict.

A Will can be updated from time to time to change the appointed legal guardian.

If the parents’ Wills do not appoint a legal guardian, then any person with an interest in the welfare of the minor children will need to apply to the Family Court for parenting orders. The Court will make its decision primarily guided by what is in the best interests of the children.

Points to Consider  

  1. Do you trust this person to continue raising your children?
  2. Do your children already have a good bond with this person?
  3. Does the person have similar values, religious beliefs, lifestyle and parenting style to yours?
  4. Does the person live nearby, or will your children have to relocate interstate or overseas?
  5. Will the person move into your home or will your children move into their legal guardian’s home?
  6. Does this person have any children? Are they planning on having children?
  7. Will the person be able to physically, financially and emotionally take on this role?
  8. Will your children remain close to their friends and other family members?

Number of Legal Guardians

It is usually best to appoint one legal guardian, rather than sharing guardianship, because:

  1. a married couple may later separate, leading to conflict as to how the children will be cared for going forward; or
  2. appointing all grandparents, or multiple aunts/uncles, also invites conflict and instability into the children’s lives.

It is possible to name a substitute legal guardian, in case your preferred legal guardian is unwilling or unable to act.

The Children’s Inheritance

Minor children must wait until they turn at least 18 years of age before they can control their inheritance. In the meantime, the Will should also appoint a trustee to look after their inheritance for them. The trustee can use the inheritance to ensure that all the children’s expenses (for example: education, medical, living expenses) are covered.

The trustee and the legal guardian can be the same person. However, it is usually best to have two different people in those roles as to minimise the risk of misconduct.

Get That Will in Place

All parents with young children should have an up-to-date Will to make sure the appropriate arrangements for any minor children are in place.

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