Here at businessDEPOT Legal we find that one of the most sensitive topics discussed when assisting with estate planning is deciding who should have guardianship of any minor children.

While it is very clear why this is such an emotional consideration, the reality is this should not protract the preparation and signing of your estate planning documents… and here’s why…

what is a testamentary guardian?

A testamentary guardian is a person or persons appointed to care for a minor child when that child’s parents or guardians have passed away.

Such person or persons have all the powers, rights and responsibilities for making decisions about the long-term care, welfare, and development of the child [that are ordinarily the responsibility of a parent/guardian].

Legislation in most states of Australia provides for the appointment of a testamentary guardian in your will. Generally speaking, the legislation says that if you’ve made a nomination, this should be followed unless there are factors suggesting it’s not appropriate [for example, a biological parent is still alive and able to care for the child].

but wait… there is a catch

The Family Law Act is a federal act that oversees family matters in Australia. As a Federal act, it overrides any State made legislation about family matters such as childcare.

The Family Law Act grants the court an overriding consideration when determining guardianship of a minor child: what is in the best interests of the child.

While the court can consider your wishes in determining what is in your children’s best interests, the court will not be bound by any nomination you make in your will.

so, what’s the holdup?

We often see that the failure of parents to agree on who should care for their minor children delays the progression of estate planning. Specifically, it is one of the most common issues we find that stops the drafting and subsequent signing of wills.

While the difficulty and importance of such a decision is obvious, given the ability for this nomination to be overridden, we encourage will makers to not let it be a roadblock to getting appropriate wills in place [even if it means not making any nomination in your wills because you can’t agree].

The risk of passing away without a valid and appropriate will is something we believe is more likely than your children not being appropriately cared for [because of the systems in place to protect child welfare].

what are the takeouts?

there are two key take-outs here

First, get a valid and appropriate will in place. It’s important for your children that you’ve received advice on how to draft your documents in a way that reduces any unnecessary stress or adverse outcomes [such as the imposition of tax].

Most importantly, don’t let indecision about the guardianship of your children protract the signing of valid wills [to minimise unnecessary stress or adverse outcomes].

General Advice Disclaimer

Information provided on this website is general in nature and does not constitute financial or legal advice. Every effort has been made to ensure that the information provided is accurate, but information may become outdated as legislation and new government announcements are made. Individuals must not rely on this information to make a financial, investment or legal decision as it does not take into account their personal circumstance. Before making any decision, we recommend you consult a licensed advisor or legal practitioner to take into account your particular objectives, circumstances and individual needs.