How to choose a guardian for your children

Who would you want to raise your kids if you were gone?
Who would you want to raise your kids if you were gone? Photo: Getty

My husband and I have been meaning to draw up a will for close to six years now, but every time we start a dialogue, it gets shut down within minutes. "Oh, actually I forgot I had a cake in the oven!" I'll mutter as I amble towards the kitchen (I don't bake). "Erm, there was this thing..." he'll volley back before staging a disappearing trick.

Now while thinking about your death obviously doesn't fill you with feelings of the warm and fuzzy variety, it isn't the transfer of assets or seeing our fiscal reality mapped out in foolscap that makes me uncomfortable, but the thought of choosing a guardian for our two daughters, aged five and one.

Is it just me, or is there something inherently unnatural about choosing a replacement mum and dad for your kids? Something strange about looking at your closest family and friends and identifying key characteristics and habits you would or wouldn't like for your parental understudy?

It's a horrible task, agrees Laura Vickers, Principal, Nest Eagle, but a necessary evil. "When you die, the other parent will automatically have parental responsibility, however in the event you both die and you don't have a will nominating a testamentary guardian, any person with sufficient interest can apply to the Family Court for a parenting order to raise your children." This means there is every possibility your children may end up in a home you wouldn't have chosen for them personally, being parented in a way that's not in line your own values.

The issue of guardianship aside, you also need to consider your children's inheritance and who will look after it until they come of age, says Vickers. "If you die without a will, a court-appointed administrator pays your bills and taxes from your assets then distributes the remainder based on a pre-determined formula." This administrator will also appoint a trustee to manage your children's inheritance, and once again, it may not be the person you yourself would have liked to have controlling the family purse strings.

So clearly, appointing your own guardian is the way to go, but how do you find the right person? By sitting down, pouring yourself a (very large) glass of wine, and hashing out the following:

Make a short list

The first thing you need to do is define your 'dream parent' by listing the qualities that most matter to you in the person who will be raising your children in your absence. It could be a matter of soul-searching who you are as a parent and what's most important to you, but it could also include moral values (kindness, honesty), practicalities (where you want them to live), and spiritual elements (whether you want your children raised in a particular faith). Then it's  matter of making a list of potential candidates, discussing each one's pros and cons with your partner and assessing how well each of these people match up with the 'dream parent' items on your list.

Think with your head

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Cousin Bessie might be a champion and you might love her to bits. But if Cousin Bessie thinks nothing of wearing last night's Glo-sticks in her hair and eating Spam sandwiches for dinner five nights in a row, Cousin Bessie may not be the best thing for the kids. Vickers suggests putting serious thought into the following:

  • Do you trust the person to raise your children the way you want them to be raised? Think about their parenting style, values and beliefs.
  • Is the person willing and physically able to carry out the role? For instance, are they considering having more children and may not have energy to devote to your children?
  • What kind of relationship does this person have with your children? You want someone your children feel comfortable with and respect.
  • Where does the person live? You may want to avoid your children having to relocate.
  • Is the person financially stable and able to make good financial decisions? Your Will could provide for a lump sum gift for the guardian or the ability to live in your home rent-free. Your Will can also provide for advance payments for education expenses and the like. 
  • How old is this person? You can always amend your Will should your intended guardian become physically unable to care for your children. 

Be sensitive to your family 

Choosing a relative is the most common pick but there's no law that says your children have to go to a family member. For many, close friends are the family they would have chosen for themselves as they often share our value systems, goals and mindsets. Having said that, the decision to appoint guardianship to a trusted friend can lead to many tense arguments and heartbreak within your family unit. Tell them upfront, but take the time to explain the reasons behind your decision. Perhaps you felt your parents were too old to cope with the demands of your boisterous duo, or you wanted to keep your kids anchored within the life they currently enjoy, within the same suburb, same school and same click of friends? Regardless, be clear, be firm, but be understanding.

Look to your children

Guardianship arrangements can go wrong when the role is taken out of a sense of duty rather than a genuine love and commitment to the children so pay close to attention to who your kids gels with and who they love and admire. Obviously a person who ticks off many of your 'dream parent' attributes is a frontrunner, but be sure it's a person your children adore and someone who in turn will love your children just as much as you do.

Ask permission

Congratulations! You've found 'The One', but before you start drawing up legal documents, you'll need to ask the lucky prize winners their permission. This isn't just a simple matter of asking, 'Hey, will you look after my kids if I shuffle off the mortal coil?'; you will need to sit down with them and speak openly about everything from the reality of your finances to your world views. Your prospective guardian needs to know exactly what they're saying yes to and how such a decision might impact their own life.

Making it legal

Once the decision has been made and the prospective guardian has accepted, it's time to draw up a will. The cost of doing so can range anywhere from a $40 DIY kit through Australia Post to the thousands for sophisticated trust structures, but Vickers says a nice halfway point is a lawyer who offers fixed fee wills combined with a consultation so you know the will is appropriate for your circumstances (Nest Legal charges $270 for one will, or $400 for a couples'). "Although tempting, it can be a false economy to go the DIY option because if you execute it incorrectly, fail to provide for someone or fail to describe gifts clearly, the legal costs will be far higher than had you just engaged a solicitor to draft a valid will." This is particularly true in cases where there is pre-existing tension between family members, blended families, a family business or you wish to make charitable gifts. The average cost of a will challenge? $100,000. "You may also wish to document your wishes and hopes for your child's upbringing in a letter and store it with the will covering issues such as education, travel and the values you think are important," adds Vickers. Of course, appointing a guardian in your will may help avoid disputes, it's important to note that the Family Court retains an overriding power to appoint a different guardian or remove a guardian when it considers this to be in your child's best interests so choose wisely.

And then? It's a simple matter or revisiting the will and letter every year or two and updating if and where necessary. In saying that, here's hoping to a long and healthy life.

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