Who will look after your minor children if you die?

What happens when both parents die early and minor children are left behind?

The children must come under the care of a guardian. You can appoint a guardian by your will. (for example in NSW s 14 Guardianship of Infants Act 1916 (NSW) gives a parent this power)

If there is no guardian appointed under a will, someone, perhaps grandparents, will need to apply to a tribunal to be appointed guardians

Often there may be a dispute about who will be guardians – two sides of a family fighting it out for example – and this would necessitate the tribunal or court to make a decision. In NSW the relevant legislation is Guardian of Infants Act 1916 (NSW)


Some of what to consider when appointing a guardian

  • Will they accept the role?
  • Where does the guardian live?
  • Should they be compensated (via your will)?
  • Is their accommodation suitable?
  • Should they be allowed to use some of the children’s money to extend their house? (a court has said yes in at least one case);
  • How old are they?
  • What If they die?
    • Before you, or
    • Before your kids become 18.
  • Do they get on with your children now?
  • Do they follow the wrong religion?
  • Are they connected with a circus?

This is another reason to consider a will even if you do not have any assets.


Written by Terryw of www.structuringlawyers.com.au