Whether you’re a new parent or a not-so-new parent, life is chaotic and consists of a never-ending list of to-do’s. For many parents, making a Will is on that to-do list – but it’s often something that you tell yourself you will get to later because of more pressing concerns of the family. For others, making a Will is not even on the radar either because you just never considered it or it involves a possibility you just don’t want to think about. Whatever the reason may be, making a Will should be on the top of that to-do list because it is one of the most important ways to care for your minor children and in turn, give yourself peace of mind.
The main reason that a Will is so important for parents is that it allows you to appoint one or more guardians, as well as alternate guardians, for your children should anything happen to you. The appointed guardian(s) would have the responsibility of raising your children, teaching and guiding them through life, and loving them as though your children are their own. Their parental responsibilities not only include day-to-day care, but also decisions about where your child goes to school, how your child is treated if sick, and whether your child is raised in a certain religion or upbringing. While the decision of who to appoint as a suitable guardian may be a difficult one, keep in mind that your Will is not set in stone – if circumstances change or you change your mind, you can revise your Will at any time. Not having a Will in place, however, means that you are leaving your child’s would-be guardian up to chance or to whomever is willing to step up to this significant role.
So what happens if a child’s parent dies without appointing a guardian in their Will? If there is a surviving parent who is also a guardian, then he or she would automatically have all of the responsibilities for that child. However, what if both parents die or the surviving parent dies without appointing a guardian? In that case, the child will be placed under the care of the government; the Director under the Child, Family and Community Service Act would become the child’s guardian and the Public Guardian and Trustee would be responsible for the child’s financial and legal rights. In other words, the child would be in some form of foster care until, hopefully, a relative or friend goes through the trouble and expense of applying to Court to be his or her guardian. However, all this unnecessary trouble and expense (not to mention further possible trauma to the child) can be easily avoided with a Will.
If you find yourself having trouble deciding who a suitable guardian could be, here are some factors to consider with regard to potential candidates:
- Values – does this person share your values and parenting style?
- Existing relationship – what is the current relationship between this person and your children and do they get along? Would this be your childrens’ preference, if they had the ability to choose?
- Religion and moral beliefs – would this person be able to bring your children up in the religion they currently adhere to, or the morals that you hope your child to have?
- Culture and Language – would this person be able to expose your child to your culture and language?
- Willingness – would this person be willing to take on the role of a guardian for your child and love them as their own? It is a good idea to discuss this with a would-be guardian.
- Age and Health – would this person be mature enough to handle this role or conversely, would this be too much to handle for someone who is more elderly? Take into consideration how old this person will be as your children are growing up.
- Family Situation – does this person have children of their own and if so, can they handle raising your children as well?
- Financial Situation – will this person be able to provide for your children if your children’s inheritance is not large enough to cover the expenses of raising them?
- Location – where does this person live and would you be alright with your children moving away from what they are familiar with?
Keep in mind that these things are likely to change over time. If and when they do, you can simply change your mind and revise an existing Will accordingly. If you are a parent and you don’t have a Will yet, we encourage you to think about it today and have one executed sooner rather than later. If you need help getting organized, contact us for a complimentary planning form that can help get you started.  Note that if there is a surviving step-parent, this step-parent does not automatically become a guardian unless appointed. Similarly, if a parent has sole custody, the other parent does not automatically become the guardian unless so appointed.
Estate Planning and Litigation
Lindsay Kenney LLP
This article is intended to be an overview of the law and is for informational purposes only. Readers are cautioned that this article does not constitute legal or professional advice and should not be relied on as such. Rather, readers should obtain specific legal advice in relation to the issues they are facing.