Legal Tip 172: Who will look after your minor children if you die?

Legal Tip: Who will look after your minor children if you die?


What happens when both parents die early and minor children are left behind?

The children must come under the care of a guardian. You can appoint such a guardian by your will. In NSW section 14 Guardianship of Infants Act 1916 (NSW) gives this power and there would be similar legislation in other states.

If there is no guardian appointed under a will then someone, perhaps grandparents or other relatives, will need to apply to a tribunal to be appointed guardians of the kids. Sometimes there may disputes between different family members about who will be guardians – two sides of a family fighting it out for example and this would necessitate the tribunal or court to make a decision.


Some of What to consider when appointing a guardian

- Will the guardians likely accept the role?

- Where does the guardian live?

- Should they be compensated (via your will)?

- Is their accommodation suitable?

o Should they be allowed to use some of the children’s money to extend their house? (a court has said yes and allowed renovations in at least one case under specific circumstances);

- How old are they?

- What If they die?

o Before you, or

o Before your kids become 18.

- Do they get on with your children now?

- Do they follow the wrong religion?

- Could they handle all of your children’s care?

- Are they connected with a circus?



This is another reason to consider making a will even if you do not have any assets.

 

I would be more worried if they were linked to a circus..

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Thanks for this Terry.
Is there anything i can have drawn up if something happened to me so my parents would have some shared custody rights with my ex?

 

Maybe
Not shared custody rights under the family law act - which is commonwealth law - but shared guardianship, depending on the state - guardianship is state law.

 

It is possible to appoint a guardian by your will. (in NSW s 14 Guardianship of Infants Act 1916 (NSW) gives this power GUARDIANSHIP OF INFANTS ACT 1916 - SECT 14 Power of parents to appoint guardians)

 

And a will may also govern how the guardian receives money to avoid trust asset waste. Ideally the guardian should have limits