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The roles within your Will and Enduring Power of Attorney – Part 3 (Guardian)

Author: Tracy Pratt
3 min read
27 March 2023

Key Takeaways

  • The role of guardian is an extremely important role as they are appointed to be the substitute parent for your children.
  • Who you chose to be the guardian for your children is a very personal decision and should be made after consultation with the proposed guardian and potentially your children.
  • You can also establish various trusts within your estate for the benefit of your children and direct the management of those trusts to include appropriate contributions towards the upbringing of your children.

In the third part of this series, we look at the role of the guardian in your Will.

The guardian’s role is to be the substitute parent for your children until they turn 18.

An alternate guardian may also be appointed to act if the first guardian cannot act or continue to act for any reason (e.g. due to death, incapacity or bankruptcy).

You should speak to any family and friends you are considering appointing as guardian/s and perhaps to your children, particularly if they are older.

As with the roles of the executor and trustee, the decision as to who you wish to be the guardian of your children in your Will is ultimately a very personal decision for you.  Your guardian should be a person you intimately trust with your children, who your children know, is usually related to you and is usually around your age as their role may last for up to 18 years.

While ultimately a matter for you, we recommend not appointing spouses as joint guardians. It is a sad fact that about 50% of marriages in Australia end in divorce and there may then be a custody battle over your children.

As we mentioned in the second part of this series, you may wish to give consideration as to whether the guardian should be someone different from the trustee, so that the trustee can offer some oversight on the guardian’s actions during what might be a long time (and vice versa).

You may also wish to consider directing the guardian caring for your infant children be paid a remuneration from the residue of your estate for the guardian’s time in the course of such care.

You can also direct via a Statement of Wishes and/or Guidelines for the Guardians, which are non-binding documents that give directions and wishes to your trustee and guardian about the upbringing of your children.  Apart from lifestyle, personal development and education decisions, you may wish for your children to remain in your home until the youngest of them reaches a certain age or for the guardian to either erect house extensions or to purchase a larger house in order to comfortably accommodate your children, with the trustee making an appropriate contribution from trust assets towards such extensions or purchase.

In the uncertain times today surrounding COVID-19, if your intended guardian resides overseas, you may also wish to particularly consider appointing a temporary guardian in Australia until such time as your permanent guardian is able to travel to Australia or your children are able to leave Australia to travel to the permanent guardian’s country.

These are all very personal decisions and we appreciate there is a lot to get through during the difficult task of administering and distributing an estate. We are professionals who have done this many times, and are happy to assist throughout the entire process to make it as easy as possible.

To discuss an estate plan for your individual circumstances, please contact Tracy Pratt, Lawyer from our Wills, Estates & Trusts team for a free initial consultation on 07 3220 1144 or email.

The information in this blog is intended only to provide a general overview and has not been prepared with a view to any particular situation or set of circumstances. It is not intended to be comprehensive nor does it constitute legal advice. While we attempt to ensure the information is current and accurate we do not guarantee its currency and accuracy. You should seek legal or other professional advice before acting or relying on any of the information in this blog as it may not be appropriate for your individual circumstances.

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