When creating your will, many people consider the house, car and other tangible assets but what about your children (under 18). Speaking directly to your intended guardian isn’t always enough to ensure that your wishes are granted.
A better option is to include a testamentary guardian in your will. This is the person who takes on the responsibility of your child/children and makes decisions in terms of their wellbeing, healthcare, education and religion.
As a testamentary guardian they will have the same powers, rights and duties as the natural parents. They need to ensure that the child/children are adequately housed, clothed and educated.
When deciding who this person should be consider:
• Their relationship with your child/children
• Their relationship with the executors and trustees of your will
• Their location in relation to your child/children’s location
• Their age, fitness and lifestyle
• Costs that might be imposed on them
It’s recommended that before adding a testamentary guardian to your will, have an in-depth discussion with the potential guardian first. This will not only ensure that they accept the position but allow your child/children to be raised in the way you and your partner originally planned.
If you don’t appoint a testamentary guardian, the matter will be left to the courts to decide. In this scenario, any person ‘with sufficient interest’ can apply for guardianship of your children. If there is a conflict or more than one application, the Family Court will make a determination as to who they think is best – this may not always align with what you might have wished or hoped for.
While thinking about what happens when you are gone isn’t fun, it’s essential if you want your child/children to live the life you planned for them. It’s always best to have your plans laid out clearly in your will and other estate documents to ensure your wishes are followed. This is a very complex area of law and we cannot recommend strongly enough you seek expert advice.