Appointing a Guardian for Your Children: What Every Parent Needs to Know
Appointing a Guardian for Your Children:
What Every Parent Needs to Know
Introduction
As a parent, planning for the unthinkable may be difficult—but it’s essential. Appointing a guardian for your children in your will ensures that, should something happen to you, your kids are cared for by someone you trust.
Without this legal nomination, decisions about your child’s future could be left to the courts, and outcomes may not reflect your wishes.
In this guide, we’ll walk you through the process of selecting a guardian, the legal requirements in Australia, and important considerations to make the best choice for your family.
If you haven’t already read our article on the risks of Dying Intestate in Australia, it’s a helpful primer on why a valid will is so important—especially for parents.
What Does ‘Guardian for Children’ Mean in Legal Terms?
In Australia, a guardian for your children is a person legally responsible for the welfare, upbringing, and major life decisions of a child if the parents are deceased.
This can include decisions about:
Living arrangements
Education
Medical care
Religion
Financial oversight (if also appointed as trustee)
Under the Family Law Act 1975 (Cth), you can nominate a testamentary guardian for your children in your will, and this appointment only takes effect upon your death.
If no guardian for your children is appointed, a court will make the decision.
Why It’s Important to Appoint a Guardian for Your Children in Your Will
Without a clear guardian nomination in your will, the decision falls to the state’s family court system, which considers what is “in the best interest of the child.”
While this legal framework is designed to be protective, it may appoint someone you would not have chosen.
Here’s what could go wrong if you don’t nominate a guardian for your children:
Disputes among family members competing for guardianship
Temporary foster care placements while the courts decide
Disruption of schooling, friendships, or living environments
Guardianship granted to someone with vastly different values or parenting approaches
Legal Requirements for Appointing a Guardian in Australia
Each state and territory has its own legislation around guardianship, but the process typically involves the following:
1. Write a Valid Will
You must have a valid and up-to-date will in place.
In it, you formally nominate a guardian for your children.
2. State Your Guardian Nomination Clearly
Use clear and legally recognised language. For example:
“In the event of my death, I appoint [Name] of [Address] to be the legal guardian of my minor children.”
3. Sign and Witness Your Will Properly
Ensure your will meets all formalities.
This generally includes being signed in the presence of two witnesses who are not beneficiaries.
4. Notify the Guardian
While not a legal requirement, it’s essential to discuss the decision with the person you’re appointing to confirm their willingness and preparedness to take on the role.
Tip: You can also appoint an alternate guardian if your primary nominee is unable or unwilling to act at the time.
Guardian for Your Children
Key Considerations When Choosing a Guardian for Your Children
Choosing a guardian for your children goes beyond trust—it’s a deeply personal decision influenced by your values, parenting philosophies, and your child’s best interests.
Here are some vital factors to weigh:
1. Relationship with Your Children
Do your children feel comfortable and safe around the person? Is there an existing bond?
2. Values and Lifestyle
Consider whether the guardian shares your parenting style, moral beliefs, and cultural or religious outlook.
3. Stability and Location
Look at their current life situation. Are they financially stable?
Do they have their own children? Would relocation be required?
4. Age and Health
Can they realistically commit to raising your children until adulthood?
Age and health can affect this decision significantly.
5. Willingness and Readiness
Have you had an honest conversation with them about what guardianship entails?
Guardianship vs Trusteeship: Understanding the Difference
While a guardian looks after the day-to-day care of your children, a trustee manages any financial inheritance or assets left to them.
These roles can be assigned to the same person or different individuals.
In complex estates, it may be wise to separate the roles—for instance, appointing a trusted friend as guardian and a financial adviser or solicitor as trustee.
Can a Guardian Be Overruled?
Yes. Even if a guardian is nominated in your will, the Family Court has the final say.
If someone contests the appointment and the court finds that an alternative arrangement is in the child’s best interest, it can make a different decision.
However, having a valid, well-reasoned guardianship nomination greatly strengthens your wishes and minimises the chance of dispute.
Updating Guardianship Decisions
Like all elements of your estate plan, your guardianship nomination should be reviewed regularly—especially after:
The birth of additional children
Divorce or separation
The death or incapacity of your chosen guardian
A significant change in your or the guardian’s circumstances
Guardian for Your Children
Final Thoughts
Appointing a guardian for your children is one of the most important responsibilities you have as a parent.
It provides peace of mind knowing that your children will be cared for by someone who aligns with your values and has their best interests at heart.
The good news? You don’t have to navigate this alone.
A trusted estate planning professional can help you draft a legally sound will and guide you in making confident decisions for your family.
To better understand the wider implications of guardianship, wills, and legal planning, we encourage you to read our earlier article on the risks of Dying Intestate in Australia.
