WHO WILL TAKE CARE OF MY CHILDREN IF SOMETHING HAPPENS TO ME?
Parenthood brings so many questions.
Most are related to the welfare of these little people for whom we take total responsibility.
One major question parents must address is: who will take care of them if something happens to me? For sole parents, and for parents of disabled children, this concern is particularly critical.
If you want to ensure your children are taken care of as well as possible if the unthinkable does happen, then you need to make a will, and you need to include a Guardianship Clause which gives the appointed guardian legal control of the children. This means the guardian will have the day-to-day control of the children, and they will be able to make decisions about the children's upbringing (including where they live and go to school), education, health and welfare.
Lynn Flanagan of Flanagan Legal Newcastle at www.flanagnlegal.net.au can guide you through the process.
QUESTIONS TO BE ADDRESSED
why should I write a will which includes a guardianship clause?
Writing a will which includes a guardianship clause will save your child or children even more trauma in the event of your death. If you have made your wishes clear, a guardianship clause in your will will be legally binding and your children would automatically go to the guardian who you previously decided will look after them best. This may save disputes between relatives and friends and help avoid applications to the Supreme Court for guardianship. If it does go to court your wishes as expressed in the Guardianship Clause will carry weight, as courts will assume that you are the best judge of who will care for your children.
who should I choose as guardian?
This is a very personal decision. There are so many factors you have to weigh up and obviously it will be gruelling to go through this process, however, it is a question that needs to be addressed by all parents.
Relatives are usually the obvious and most practical choice, but sometimes a very close family friend who has a bond with your child might be the most suitable. When choosing someone, remember that they’ll be raising your children, not just providing for them. Do they share your values and beliefs? Do they have the ability and means to care for your children (sometimes in addition to their own)? Perhaps one person will express a clear desire to play this role, or a person you were considering may not be willing to take on the responsibility. The initial conversations you have may reveal feelings and attitudes that will help you make your final decision.
A MEMORANDUM OF WISHES can provide guidance to the guardian as they raise your child.
Having made a guardianship decision, it is advisable to inform your relatives and friends who you have chosen and why you made your choice: this would give them a chance to absorb your decision and to learn to live with it.
what provisions should be in the will to support the guardian financially?
We all know that raising children is expensive. If someone is willing to take on the role of guardian it is important to ensure that provisions in the will ensure they do not suffer financial burden or loss. The will needs to include a clause that gives an executor the power to advance income and capital from the child’s share of the estate to the guardian for the maintenance, support, education and benefit of that child. The MEMORANDUM OF WISHES may also provide a guide for the executor. Sometimes, in the case of a disabled child, it will be necessary to set up a Special Disability Testamentary Trust.
As it is likely that the executor and the guardian will be acting for many years, careful consideration needs to also be given to the choice of executor/s and whether the guardian might also be appointed as a co-executor (because of a possible conflict of interest, generally a guardian is not appointed as sole executor).
Having answered these questions you can know you have done everything you can to smooth out your child’s life in the event something does happen to you.