When creating or updating your will, you might be considering nominating someone to be the legal guardian of your child.
Choosing a 'testamentary guardian' (the formal term for legal guardian) for your child if they are under 18 when you die means they will be able to make decisions about their long-term care.
It's a big thing to ask someone, so we sought advice on the best way to go about it — and what to consider before you do.
Understanding the role of a testamentary guardian
A testamentary guardian will become responsible for your child's daily care if the other parent is dead, and there is no other federal circuit and family court orders in place saying who the child is to live with, explains Gabriella Pomare, a family lawyer based in Sydney/Gadigal Country.
"[Legal guardian] should not be confused with 'live with arrangements' in a family law context," she says.
While a legal guardian will take responsibility for making decisions on upbringing of the child, it does not necessarily mean the child will live with them.
"Whilst a guardian and the person with whom the children live may be the same person, there are often very good reasons to keep them separate," Ms Pomare says.
For example, she says it may be appropriate for the child to live with your former partner (such as the father of the child), or depending on your circumstances, it may be more appropriate for the child to live with your current partner.
"However, that does not prevent you appointing a separate guardian who should be consulted on matters such as religion, education or medical treatment."
Choosing a legal guardian
People should look at a prospective guardian's financial and social circumstances, as well as their values, suggests Relationships Australia NSW CEO Elisabeth Shaw.
You should also assess what support networks they have.
"Who is supporting your proposed legal guardian should they get into difficulties? Do they have good care and support networks, which they also bring as resources for your child or children?"
While some hypothetical scenarios can be agreed upon, and even included in a "memorandum of wishes", Ms Shaw says you can't predict or control everything.
"That is why assessing your proposed legal guardian according to their values, life choices, emotional intelligence and other types of decisions will be so important."
She says it can be a challenging decision.
"Many without reliable family will look at their friendship group, and find that isn't going to work either."
Ms Pomare says where the person is located and their "emotional capacity" should also be taken into account.
And financial payment may be necessary, Ms Pomare says.
"What, if any, recompense or payments should be made to the guardian for their efforts."
Asking someone to be your child's guardian
Many discussions will need to take place with someone you are thinking about making a testamentary guardian, says Ms Shaw.
"You should see [the first chat] as a 'warm up' to a decision, where you lay out your need and why, what you are looking for, and why you have come to this person/people to discuss it.
"It is important to set the scene as a free choice and discussion which will take time to explore and evolve, and the qualities in them that made you make this approach."
She says if the other party feels they have no choice, or feel guilt-driven, conversations may not be as effective.
Details about how being a guardian would work logistically would ideally happen in second or subsequent conversations, she says, but "don't be surprised" if it comes up in the initial chat.
A guardian can be 'overruled'
The nomination of a guardian for children is always subject to the overriding jurisdiction of the court, says Ms Pomare.
"The court has the power to appoint a different guardian if the court thinks it appropriate to do so and to determine with whom the children should live.
"And yes, even the court could appoint different persons in those two roles."
She says it can become complicated in blended families.
"I recommend that as far as is possible, open dialogue between parents is to be encouraged in the hope that parents can collaborate and agree on such matters so as not to be taken by surprise."
She says it's important people review their will regularly.
"As life changes, often personal circumstances change, and people change," Ms Pomare says.
"A nominated guardian may have fallen on bad times — financially, emotionally or health wise — or you have just grown apart.
"The guardian you thought was ideal when the children were toddlers may no longer be appropriate."
This article contains general information only. You should consider obtaining independent professional advice in relation to your particular circumstances.
