When drafting wills and powers of attorney for our clients, we typically recommend that if they have children under the age of 18 years, that they name a guardian or guardian(s) who would be responsible for looking after any minor children in the event that they pass away or are incapable of looking after their child or children. This generally applies to circumstances where both parents have passed away.
It is important to note, however, that courts retain the ultimate authority for the appointment of a guardian. The appointment of a guardian in a will is only binding for the first 90 days, and after that time, it is reviewable by a court.
The wishes expressed by the parents in appointing guardians are undoubtedly an important factor considered by the courts, and generally this is given considerable weight. However, ultimately a court is always looking at the best interests of the child, and the parent’s choice is just one of many factors that they will consider.
Key Considerations in Selecting Guardian(s)
- Who you select can depend on various factors: location of guardians, proximity to other family, the age and stage of development of the child and also the guardians, whether the guardians have their own children or challenging family circumstances. For this reason, the guardian you select at one point in time may need to be revisited every few years as your life and their lives evolve.
- Guardianship can be difficult. Make sure your proposed guardian has the ability and capacity to look after the child – and be sure to discuss the matter with them prior to appointing them. A surprise guardianship appointment may not be well received; there are many factors that may need to be discussed before they would be prepared to agree.
- If you have the means, be sure to provide sufficient resources for the guardian to provide for your child, including compensation for the guardians.