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If you and your partner pass away, who will look after your children?

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If you haven’t made formal arrangements for this worst-case scenario, the fate of your children will be left to the courts to decide, which may not be in anyone’s best interest, least of all your children’s.

What would happen if you and your partner were involved in a fatal road accident, but your children survived? It’s highly unlikely, but as many of us get ready to hit the road for a weekend away, it’s a sobering thought—and one that should prompt us to prepare for such a scenario.

“Preparing a Will ensures that your wishes—both for your children and your estate—will be carried out,” says Tanya Herbertson, Partner at Meyer Vandenberg Law.

“If you don’t appoint a legal guardian, then you’re putting your children’s fate into the hands of a judge who doesn’t know you or your circumstances and creating potential conflict amongst family and friends.”

So where do you start when thinking about who to look after your kids?

“It helps to understand the role of a guardian,” says Tanya. “Whoever you choose will be responsible for the day-to-day welfare of your kids including providing adequate food, housing, clothing and education.”

Choosing someone who shares your values is probably a good starting point, along with them being in a position where they can actually take on the responsibility. Another factor to consider, says Tanya is age.

“The people you choose may differ, depending on your children’s age,” she notes. “For instance, active grandparents in their 60s might be OK to deal with smaller children, but fast forward 10 years when they’re in their 70s, and they may not be equipped to deal with teenagers.”

Tanya says it’s also important to think about maintaining consistency in your children’s lives.

“Having familiar friends and surroundings are really important to children who’ve experienced a devastating loss,” says Tanya. “So where possible, I encourage parents to think about who could keep your children in their current home, school and community.”

Another consideration is how your children will access money in your absence.

“It’s common to put a clause in your Will giving your executor and trustee the power to advance income and capital for the maintenance, support, education and benefit of a child,” explains Tanya. “However, I recommend that the executor/trustee is not the same person as the guardian, as that can pose a risk.”

You can choose more than one Guardian but that can also create potential conflict and you would need to be sure that they could work together, putting the interests of your children first. And finally, a Will also gives you a certain level of comfort that if you died, your children would be looked after in the way that you would want them to be.

“You can consider a memorandum of wishes which is an informal document that accompanies your Will,” explains Tanya. “It can detail things that are important to you in the care and control of your children, such as religious upbringing, schooling and contact with family members and friends.”

If you have children and haven’t made a Will, or updated one, contact us now so that we can assist.


(02) 6279 4444

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