Legal Guardian – Do my Children Need One?

What is a Legal Guardian?

A Legal Guardian is someone over the age of 18 who has been appointed to care for a minor child where both parents have passed away before the child reaches adulthood.  The Legal Guardianship relationship terminates when the child reaches 18 years of age.


How do you appoint a Legal Guardian?

A Legal Guardian can be appointed in a will. A will allows a testator to clearly state their intentions leaving no room for debate or confusion. Alternatively, the Supreme Court can appoint a guardian who has ‘sufficient interest’, where a will is silent on the matter. 


Is it legally binding?

The appointment of a Legal Guardian in a will is not legally binding however it is useful if a dispute arises in the Family Court.  It should be noted that nominating a Legal Guardian in a will does not bind the court, but rather the court will use what is in the will as a guideline when appointing a Legal Guardian. 


Who can be a legal guardian?

Anyone over the age of 18 can be appointed to be a Legal Guardian.  It is important to choose someone who has the necessary time, responsibility and energy to properly care for your children.  It is recommended that you ask the intended guardian if they are willing to accept the responsibility. 

Guardianship can be flexible and changed if necessary.  This can be done via making changes to your will while you are alive or alternatively by someone making of an application to the court once you have passed away.  

If you are wishing to make your parents guardians over your children but you are concerned that your parents may have later difficulty due to their advancing age, then it is possible to specify that the responsibility of guardianship passes to your siblings either after your parents reach a certain age or some other milestone.  The change of guardianship can often be difficult on children and so serious consideration should be given by you to before making of such a decision. 

Where no Legal Guardian is appointed, it is likely that the matter would be referred to the Family Court so that a decision can be made. Further, The Supreme Court also has an overriding power to remove any Legal Guardian. Please contact us at O’Brien, Connors and Kennett to have any of your legal matters handled.


DISCLAIMER: The information contained in this article is general and is not intended to be advice on any matter. It is for information only and is not legal advice. In the event of a legal problem, you should seek legal advice.

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