Guardians of Children

Drafting a Will for the parents of young children raises the issue of the appointment of guardians for those children.

Barry and Barbara have two children aged 7 and 4.  Their life is dedicated to raising their children.  It was an emotional journey to have to consider being absent from their children’s lives.  As difficult as it was, they had forced themselves to consider this unpleasant situation.

Who would care for their children?

My mum and dad would look after them.”  Barbara’s mum and dad are in their seventies.  They are not really a great choice.

“Well what about my brother?” suggests Barry.  Barry’s brother is separated from his wife and now leads an independent single lifestyle.  He is really not a great choice either.

There must be serious consideration given to who would best look after the children. It is important that there be compatibility between the lifestyle that you have established for your children and the lifestyle established in the home where you hope the children will be cared for.  There seems little point, if you parent your children in a relaxed parenting style, to send them to a family which is run like a military base.  You may not have the choice.  But, if you do have a choice, then look at parenting styles as well as security.

The next thing that should be remembered is that there is no compulsion for somebody appointed in your Will to act as guardians of the children.  The person or persons appointed must be willing to accept the responsibility.

Obviously, this issue only arises when both parents have passed away.  To pass the responsibility for the care of children to somebody other than the actual parents is passing on a huge responsibility. There needs to be talk between the parents and the people appointed as the guardians.  That talk should include what your expectations are for the future development of the children; what education you expect the children to receive; what special needs they have; whether you want the children to progress to tertiary education; whether they have a particular talent and how that talent can be catered for.  You can’t absolutely map your children’s future, but your expectations in the interests of the children, need to be discussed with the people you are appointing as the guardians of the children.

After careful consideration Barry and Barbara have appointed their close friends as guardians of the children. They have discussed this with the friends and the family. The friends are prepared to accept the responsibility and the family understand the reasoning.

It doesn’t often happen that children are asked to live with guardians, but it does happen frequently enough to require careful consideration of the issue.

Experienced estate planning solicitors are very aware from their dealing with responsible parents that this is an emotional issue and a very difficult one for parents to come to grips with.