Let’s face it: Making a decision about who would raise your kids, if you weren’t around to, is no one’s idea of a good time. Too hard to think about? Yes. Easy to avoid? Absolutely.
With this in mind, it’s perhaps not surprising that struggling to choose a guardian is one of the most common things that stop people from making a Will. But here’s the thing – it’s something you need to do for your family (and it really doesn’t have to be so hard).
With more than 25 years’ experience in Wills and Estate Law, I have learnt a thing or two about overcoming this barrier. So knock on wood, grab your pen and pour some wine – we’re going to find the perfect guardian.
I often hear people say they don’t need to choose a guardian because their children will go to their closest family member. But this isn’t always the case.
If you don’t name a guardian in your Will, anyone can come forward to make a case for guardianship. And ultimately, the decision is left to a judge. And while guardianship disputes can still happen even if you have a Will, your wishes will be an important consideration.
Whether you have an obvious person in mind or have no idea where to start, it’s important to give this decision a lot of thought. For many people, when they spend time thinking about the right guardian, they realise it’s a different person – or couple – than they originally envisaged.
So, how can you choose the right guardian for your children? Here’s a few things we suggest you keep in mind when weighing up your options.
Your values are a great indicator of the traits you want in a guardian. This can include obvious things like religious beliefs and personal values but can also include what a person prioritises.
Is education important to you? Or perhaps creativity? If you and children spend most of your time outdoors then someone who values exercise and nature might be the best fit. If reading, art and culture are important then you should think about a guardian who will provide a consistent environment for your kids.
Do you want your children to remain living where you live now? Are they a part of a strong community, with lots of friends and a solid network? Whether or not this is important to you may depend on where you live and what age your children are. But if you don’t want to uproot your children, then it’s a good idea to consider a guardian that lives close by.
Your best friend is a free spirit – she’s impulsive, creative and adventurous and that’s why you love her. But this doesn’t necessarily make her the right person to provide a safe and consistent environment for your kids. And then there are your parents – who you trust completely. (I mean, they raised you and you’re great!) But do they have the energy and health to be parents again? It’s important to consider whether your prospective guardian can adapt to raising your children if needed.
This is an important consideration. Does your potential guardian own a home and have a secure job? Raising children is a significant expense so you want to make sure the person you choose can afford it.
So you’ve weighed up what’s important, rated your nearest and dearest and you’re ready to commit. But, does your prospective guardian know and agree? Guardianship is a big responsibility so it’s important to have an open and honest conversation before locking it in. Sit down with your prospective guardian, explain why you chose them and give them the space to ask any questions they might have.
So you told yourself you would make a Will and choose a guardian and now two weeks/months/years have passed. It happens! We meet a lot of people who feel overwhelmed or guilty about this important item on their to-do list.
My advice is: don’t beat yourself up about it. Understand this is a common challenge and start making small steps towards your goal. It can help to:
Struggling to choose a guardian doesn’t need to stop you from moving ahead with your Will. Our online service, MyLife Wills makes it easy to get started.
In 30 minutes you can submit your wishes through our online form – from the comfort of your own home. Don’t worry if you make a mistake or leave something out, we will call you to go through the details and any questions you might have. This includes questions you may have about guardianship.
Once you’ve spoken to one of our lawyers, they will then draft your Will for a fixed fee and make sure it is legally valid.
Our experienced wills and estates lawyers are here to help - everything from getting your own affairs in order, to administering a Will when you're an executor, to challenging a Will.
Our Canberra office is now closed, but our team continues to serve ACT clients and are available for phone and video appointments. If you need legal advice, please call us on 1800 675 346.
We have lawyers who specialise in a range of legal claims who travel to Tasmania. If you need a lawyer in Hobart, Launceston or elsewhere in Tasmania, please call us on 1800 675 346.