How To Nominate A Legal Guardian: Turnbull Hill Lawyers

No one knows what is waiting for them around the corner; and yet, many Australians risk exposing themselves, their children and their loved ones by neglecting to consider what happens to them if something terrible is around that corner. It could be a car crash, a sudden diagnosis, or even a gradual decline in health that isn’t picked up until it’s too late.

Appointing a guardian is an important consideration. A guardian can step into your place if something goes wrong and make sure you’re taken care of you once you can’t make these decisions yourself.

What is a legal guardian?

A legal guardian refers to a person who oversees the decision-making for another. For example, a parent is the default guardian of a child. That parent could also be the guardian of their unwell father, who can no longer make health decisions.

A child who has lost their parents may also have guardians appointed within their parents will who will take care of them until they reach 18. It’s important to remember that they can only make these decisions once you cannot.

Enduring Guardian

An Enduring Guardian’s primary responsibilities are deciding the type of healthcare a person receives and where they live. These critical decisions will frequently need to be made on the spot and urgently.

Appointing an Enduring Guardian before things go wrong will ensure your wellbeing is safeguarded. Similarly, you should check that you have made provisions in your will for the care of any underage children.

Enduring Power of Attorney (EPOA)

An Enduring Power of Attorney is a document that appoints someone who can step in and make financial and legal decisions for you when you cannot make them for yourself.

The term “enduring” is crucial, as it means that the power granted to the attorney continues even if you were to lose mental capacity.
For a more detailed explanation on EPOAs, check out this video by one of our solicitors.

Who can be a legal guardian?

Anyone may be a legal guardian if they are over 18 and aren’t receiving a benefit from where you live or the medical services you receive.

How many guardians can a child have?

Theoretically, there is no limit to how many guardians a child may have. Practically it is a good idea to limit the number to two people, given the intrinsic responsibilities and burden.

How to nominate a legal guardian

A guardian can be appointed in three ways:

1. An Appointment of Enduring Guardianship
Any person over 18 years may appoint an Enduring Guardian to step in once they lose the capacity to make their own decisions; they may also appoint a substitute if their primary guardian is unable/unwilling to act for them.

2. A will
Parents who pass away may appoint a testamentary guardian of their underage children through their will. Again, the guardian appointed might be unwilling or unable to act, and a substitute guardian could be included to cover this scenario.

3. An order of the NSW Civil and Administrative Tribunal (NCAT) or Children’s Court
NCAT’s Guardianship Division can hear and adjudicate applications for the guardianship of a person.

A person applying to be a guardian must meet have “a genuine concern for the welfare of the person”. NCAT can consider factors like the views of the person and their loved ones, their existing family relationships, and their cultural/linguistic environments.

For a person under 18 who has capacity, the Children’s Court is the primary jurisdiction that manages guardianship orders regarding minor children.

Choosing a legal guardian for your child

A legal guardian for your child will be required to act as their surrogate parent until 18. It is an incredibly significant role, as they will not only be helping your child through the loss of their parent(s), but will also continue their growth and development through their formative years. The obligation will naturally involve a love for your child, the ability to give up substantial time, and the financial resources to incorporate your child into their home.

Consider appointing parents/parents-in-law, siblings or close family friends. Whoever you choose should have a strong pre-existing relationship with your children.

Once you’ve made your choice, it’s crucial to let those people know and ensure they are comfortable with this role. Otherwise, you may nominate someone unwilling or unprepared to take up the role, to your children’s detriment.

A comic example of testamentary guardianship was shown in the 2010 movie Life As We Know It. The ensuing chaos after the death of Sophie’s parents and the unexpected appointment of two of their friends as guardians, provides a fictional depiction of a potential real-life scenario. It shows the need for significant planning on behalf of parents with young children.

Do legal guardians receive money from the state?

Not necessarily. There are certain allowances, such as a carer allowance, for which a guardian may be eligible. Other funds a guardian may receive could be from monies held on trust from the parental estate for the child.

Real-life example

Britney Spears’ saga of the past decade-and-a-half illustrates what can go wrong when another person steps in to make your own decisions. No matter your position on whether it was needed in the first place, the ongoing years of conservatorship and the eventual need to overthrow the order, highlight the consequences of guardianship arrangements gone wrong.

The best way to ensure you and your children are provided for is to make plans as soon as possible. This gives you peace of mind and helps to avoid costly and time-consuming court proceedings.

Such a plan is best made by an experienced solicitor who has dealt with these scenarios countless times and knows how to avoid common pitfalls.

If you need any assistance with matters relating to Legal Guardianship, contact our Wills and Estates team.