Wills and Estate Planning Lawyers Melbourne

Including a guardianship clause in your Will allows you to nominate a person (or people) to care for your minor children if you die before they reach adulthood. This is a crucial aspect of estate planning for parents, ensuring your wishes regarding your children’s care are clear and legally documented.

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How Guardianship Works in Victoria

• Nomination in a Will: You can nominate anyone over 18 years of age as the preferred guardian for your children in your will, provided they consent to the appointment.

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• Legal Effect: The appointment of a guardian in your will (often called a testamentary guardian) expresses your wishes but is not automatically legally binding. If both parents are deceased, or the surviving parent is unable or unwilling to care for the children, the nominated guardian can apply to the Supreme Court or Family Court for formal parental responsibility.

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• Court’s Role: The Court considers your wishes but will ultimately decide based on the best interests of the child. If there are disputes or competing claims, the Court will determine who should have parental responsibility.

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• Permanent Care Orders: In Victoria, the Children’s Court can make a permanent care order, granting parental responsibility to the nominated guardian until the child turns 18.

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• Joint Guardians: You can appoint more than one guardian, but it’s important to consider whether joint guardians can cooperate effectively.

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What Guardianship Covers

A testamentary guardian may be responsible for:

• Deciding where the child lives and who they live with.

• Making decisions about the child’s education, health care, and religious upbringing.

• Managing the child’s property and finances (if specified in the will or by court order).

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Important Considerations

• Consent: Always discuss your intentions with the proposed guardian to ensure they are willing and able to take on the role.

• Surviving Parent: If a child’s other parent is alive and has parental responsibility, they will usually continue to care for the child. The guardianship appointment typically only takes effect if both parents are deceased or unable to care for the child.

• Court Discretion: The Court has the final say and will consider the child’s best interests, existing parenting orders, and the suitability of the nominated guardian.

• Successor Guardians: It is advisable to nominate an alternate (successor) guardian in case your first choice is unable or unwilling to act.