Appointing a Guardian Under Your Will

It is important for every person over the age of 18 years to make a Will.  However, if you make a Will and if you have children who are under the age of 18 years, it is essential that you consider who the most appropriate person might be to be appointed as a guardian for your children if you die while they are still minors.

Appointment of a Guardian

Depending on your circumstances and wishes, the appointment of a guardian can be structured to take effect on your death:

If you are the sole surviving parent of the child; or
If you are not the sole surviving parent, but intend to appoint a guardian to act jointly with the child’s surviving parent.

Most commonly, the appointment of a guardian takes effect on the death of the last surviving parent.  If you appoint a guardian to act jointly with the child’s sole surviving parent, this type of appointment can be problematic, as the sole surviving parent can object to the appointment of a joint guardian.  If the sole surviving parent objects to the appointment of a joint guardian, then they can make an application to the court which will then determine whether the guardians will be the nominated appointed guardian acting jointly with the surviving parent or whether the surviving parent will be the sole guardian.

When appointing a guardian, consideration should be given to the suitability of the guardian.  Matters to consider might be the guardian’s age, gender, and where the children have formerly resided and attended school vis a vis where the guardian resides.  Consideration should also be given to appointing an alternative guardian if the first guardian is unable to act for any reason or is deceased.

Role of the Guardian

A guardian of a child has the same powers, rights and responsibilities as the child’s parent, for making decisions for the child about their care, welfare and development.  This includes matters relating to education and religious upbringing.

If you have children who are minors and you have not made your Will, please contact the Smith & Stanton Wills and Estates department to arrange an appointment to discuss and make your Will.

For more information or to request an appointment, please get in touch with us today.
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