How to be a Guardian Angel

Fiona Shilton Wills Estate Lawyer Adelaide

 

How to be a Guardian Angel

Like many parents, my kids are my world. I was lucky enough to get five of them, in two batches.

In January 1998, Lily was born at the Murray Bridge Soldiers’ Memorial Hospital. After waiting an extra 10 days for her arrival, Lily rushed into this world like a freight train. Well, it felt like a freight train. I became a mum two weeks shy of my 21st birthday, with my best friend and my own mum by my side, and we all fell in love with this nine pound four ounce bundle of perfection.

Oliver arrived two years later in a similar blaze of glory, and I kept them both under my wing for as long as possible. I tried my hardest to raise them with love, care and guidance to be happy contributors.

I was in the thick of this parenting thing throughout my 20s. And somehow, we all survived. Out from under my wing. Flown the nest.

Now, I have another brood. Three more kids aged 10, 8 and 7. I’m back in the thick of this parenting thing.

In my 40s I’m not feeling so indestructible. I’ve seen so many things go wrong – in my life and in the lives of clients I’ve supported during my legal career. I know that things can go wrong real quick. I wonder, how many near misses do we get? Cats are supposed to have nine lives, but what about me?

What I’m thinking is: who will look after my kids if I die?

It’s a scary, unthinkable thought. But with planning comes power, and reassurance that your kids will be OK and all the hard work you’ve put into their upbringing will continue under the watchful eye of someone you trust.

Here is some information I have found useful as I’ve negotiated the process with my own family.

What (or who) is a testamentary guardian?

A testamentary guardian is someone you can appoint in your will if you have kids who are under 18 years of age. The testamentary guardian will be responsible for making sure your children are cared for in the event of your death.

What if I want to appoint more than one person?

No problem. You can appoint more than one testamentary guardian.  You can also appoint testamentary guardian(s) to be your child’s guardian in conjunction with the other parent, or their sole guardian in the event that there is no surviving parent.

What’s the first step?

You should have a chat with the people you have chosen to make sure they are happy to take on this role. It’s also a good time to have a deep and meaningful discussion about your parenting philosophy and your kids’ needs.

What if the other parent is still alive?

If the other parent is still alive, the testamentary guardian will share their obligations with the surviving parent and the kids’ living arrangements will depend on the circumstances.

What if there is a dispute?

If there’s any dispute after you die, your testamentary guardian, other family members or a surviving parent can enter into negotiations to put appropriate parenting arrangements in place for your kids.

Ultimately, the court can make parenting orders which agree or disagree with the terms of your will after taking into account the kids’ best interests.

What are the testamentary guardian’s responsibilities?

Your testamentary guardian does not necessarily have to take on day to day responsibility for your kids to ensure that your kids are well cared for. For example, your testamentary guardian may put in place the best living arrangements for your kids and guide your executors to use funds from your estate to support them in line with your parenting philosophy and goals.

You can be your kids’ Guardian Angel

The appointment of a testamentary guardian by a deceased parent is a formal and meaningful direction for other family members, the community and the court about your vision for your kids’ future. In doing so:

  • You take hold of the wheel. Your clear instructions will help avoid some of the floundering which occurs amongst the players in the room in the event of your unexpected death.
  • You shout it from the rooftops. You have an opportunity to clearly state to the people close to you what you want for your kids in the event of your death.
  • You hand over the baton. You empower your chosen testamentary guardian to take a special interest in your kids’ wellbeing, even if it works out that the kids don’t live with them.
  • You arm them. You give your testamentary guardian permission to apply to the Court for parenting orders, if required.
  • You draw a map. You may wish to set out some decision-making principles to empower your testamentary guardian in their role after your death.

As parents, we start out as our children’s first and most important carers and mentors but we don’t do it alone. All the grandparents, aunts and uncles, teachers, coaches and childcare workers and friends in their lives help shape them with their time, kindness and guidance.

We build communities around our children, and appointing a testamentary guardian in your will is another important part of this. It’s a way to continue to protect your children and look after their best interests, even in the event of your death: to be their Guardian Angel.

It’s something I’m so glad I’ve done and it’s something I love supporting other families to do. And the best thing is, once that’s all sorted, we can get back to the fun stuff – spending time with these little humans who are our whole worlds.

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