Guardian? The choice is not yours.
In Australia, it is the Family Court that has the final say on who becomes your child's guardian after you die. But, you can help the Court make the right decision.
For most parents, it is quite shocking to learn that they don't have the final say about who would be the guardian of their children if they were to die. However, there are very good reasons why the Court has the final say.
This 'safety net' is in place because of the simple fact that the future remains unknown, and no parent has a crystal ball.
The person or people you nominate now in your Will may not be the best choice in the future if their circumstances change for the worse. For example, most people create their Will and then forget about it.
What if a decade or more passes by without any consideration for the people nominated in your Will as your preferred guardians?
What if your preferred guardian developed an addiction or mental health issue during this time that you were unaware of?
What if their financial circumstances have changed dramatically for the worse and they never let on about it?
What if they have remarried someone with a history of violence or other problems?
It is for these reasons that your nomination for your preferred guardian in your Will is non-binding and subject to approval by the Family Court.
The Family Court will make its decision on who is the best guardian for your children based purely on what is in the best interests of your child. The court will consider:
1) The parents preferences; and
2) The child's preference; and
3) Each candidate's character; and
4) Each candidate's personal and financial circumstances.
What can you do now as a parent to help?
You can help the Family Court understand your wishes in two simple ways. First - nominate in your Will your first and second choice preferences for guardian(s). Second - write down your reasons for who you have nominated and your reasons for who you haven't nominated as your preferred guardian(s), leaving this information with your Will or in a signed Memorandum of Wishes.
How can Will Wizard help?
First & second choice guardians At Will Wizard, our guided online form carefully guides you through the guardian nomination process. We provide opportunities for you to nominate up to two first choice and two second choice guardians. Memorandum of wishes
We also provide a blank Memorandum of Wishes document in every Will Wizard portfolio where you can write your reasons for who you have and who you have not nominated. This way the Family Court will understand your wishes and reasons perfectly. Sensible instructions for guardians & authority for executors
Simply nominating your preferred guardian(s) is not enough. Our Wills include the latest modern legal provisions drafted to ensure that the appropriate level of care and funds are made available to support each child's welfare, education and personal development, with all funds provided to your guardian overseen by your nominated executor(s).
Our Wills also include sensible directions to executors instructing them on how to manage and protect a young person's inheritance until they are of age to do so themselves. Controlling age We also give Will owners the option to choose a more mature 'controlling age' over 18 that a young beneficiary must obtain before they are permitted to have complete control of their inheritance. Many people believe an age between 25 - 30 is a suitable controlling age.
Beneficiaries still have access to their inheritance for important health, well-being, education, housing and living expenses, but are not permitted to make large immature purchases with their inheritance.
Testamentary trusts Furthermore, all beneficiaries are provided with the option to receive their inheritance in a testamentary trust created by our Wills for long-term tax advantages and the protection of inheritances from divorce, bankruptcy and other third-party threats.
This includes different types of trusts such as Preservation Trusts for Beneficiaries Under The Controlling Age, All Needs Protective Trusts and Special Disability Trusts, depending upon the age and needs of the beneficiary.
The Family Court has the final decision when it comes to the guardianship of your children. However, with the right Will and support documents in place you can put your best foot forward as a parent to ensure the Court has all the information they need to appoint the right guardian(s), and that your guardians and executors have the guidance and authority they need to ensure the proper long-term care and development of your children.
Thank you for reading.
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Will Wizard Co-Founder
As always, if you have questions about the suitability of any Will for your needs and circumstances, seek independent legal advice.