How to Nominate a Legal Guardian For a Child

One of the life events that often prompts a person to draw up their first will is the birth of a child. In addition to ensuring the financial wellbeing of their child, parents will often use their will as an opportunity to nominate someone to care for their child if they are orphaned before they turn 18. In Australia, legal guardianships are governed by both the Family Law Act 1975 (which establishes principles for the care and welfare of children), and specific state and territory laws that govern the appointment of guardians. This article looks at the process to nominate a legal guardian for a child in Australia.

What is a legal guardian for a child

A legal guardian is an individual who is entrusted with the custody, care, and decision-making responsibilities for a child. The need for a legal guardian typically arises if the child’s parents are unable to fulfill their duties because they are incapacitated or deceased. In those circumstances, a guardian assumes the ‘parental responsibility’ that enables them to make critical decisions for matters such as the child’s education and health care.

There are clear advantages to nominating a legal guardian in a will. Making a formal appointment means that there should be little legal delay or uncertainty. The parent can select the person who, in their absence, will provide love and daily care for their child, and ensure the child is brought up according to the parent’s values. It can also hopefully prevent family members from fighting over who should take care of the child. The child themselves may even be aware of who will take care of them if anything happens to their parents, removing one area of uncertainty for the child at a terribly vulnerable time.

Who should be appointed?

In most cases, a legal guardian will act as surrogate parent until the child turns 18. This is obviously a very significant role, not least because a guardian is responsible for bringing up a child who has been traumatised by the loss of their parents. It goes without saying that the person chosen to be a guardian should be responsible and trustworthy, capable of providing emotional and financial support, and aligned with the parent’s values. Moreover, whoever the parent chooses should have a strong pre-existing relationship with the child. While there is usually a strong preference to appoint relatives to act as guardians, the right person for the child might be a friend of the family or neighbour who the child has seen more regularly in their life. This is especially true in cases where relatives live some distance from the child or even in a foreign country, and their appointment as guardians would prevent the child from staying in their school, community and culture. Anyone can be appointed to be a child’s legal guardian if they are over the age of 18 and not the child’s paid carer or health provider. Theoretically, a child or dependent could have any number of guardians, though it is best to limit the number for practical reasons.

It is crucial for parents to let the proposed guardian know that they are considering their appointment, as they may be unwilling or unable to take up the role if the time comes. Naturally, the courts will not enforce an appointment without the guardian’s consent.

Even when the appointed guardian is willing to act, the courts may still need to become involved to ratify the appointment, particularly if there is no valid will or if there are disputes over who should take care of the child. As always with parenting matters, the primary concern of the court is to act in the child’s best interests. Certainly, someone who is deemed to be unsuitable to care for a child will not be permitted to exercise parental responsibility, regardless of the parent’s wishes.

Enduring guardians

Guardianship does not always come about because a child’s parents are deceased. An adult may need to have someone act as enduring guardian if they are not competent to manage their own affairs because of mental impairment or incapacity. Guardianship appointments are primarily governed by state and territory laws. Each jurisdiction has specific rules and procedures that are outlined in laws such as the Guardianship Act 1987 in NSW. It is essential to check the requirements in the specific state or territory when formalising guardianship arrangements.

Procedure to appoint a guardian for a child

There are three ways to appoint a legal guardian:

1. A parent can appoint a testamentary guardian (plus alternates) in their will who will take charge of any underage children if their parents pass away. The will should have a clear clause naming the guardian and listing their responsibilities, and specifying an alternative guardian if the primary nominee cannot serve. The parent can also make practical arrangements in the will for financial support for the child’s needs, often through the creation of a trust. One advantage to this approach is that the parent can consider the child’s wishes when making their decision.
2. An adult can draw up a legal document appointing an Enduring Guardian (plus an alternate) to take over if they lose capacity to make their own decisions at some point in the future.
3. A tribunal (such as the NSW Civil and Administrative Tribunal) or a children’s court can adjudicate applications for guardianship. During a hearing, anyone with a “genuine concern for the welfare of the person” can apply for guardianship, and a judgment will be made given factors such as the views of the person, their loved ones, family relationships, and cultural considerations.

Because circumstances change over time, it is essential to regularly update the legal documents appointing a guardian. Regularly reviewing the documents ensures that the nominations remain relevant and reflective of your wishes. Please reach out to the lawyers at Go To Court on 1300 636 846 for any advice about how to nominate a legal guardian in Australia, or any other legal matter.