5 Things You Need to Know About Guardianship

Our children depend on us to be there for them. As soon as you become a parent your whole life evolves and ultimately revolves around your children. It’s a natural instinct to love and protect them and that’s exactly what we do every day. But as responsible parents, it’s also important that we set time aside to answer the “what if” questions. Such as what if I’m not here to see them grow up? or what if neither my partner nor I am here?  We don’t want to think of these things and it’s easy to turn a blind eye, after all, what are the odds? But the game of risk we are playing by not answering those questions and taking appropriate action is rolling the dice on our children’s future. We are not the ones that would be here to see the impact of that decision if the worst were to happen.

It’s our mission to bring awareness and educate parents on the consequences and risks of not assigning guardianship in their Wills especially since no one thinks it will happen to them. That’s why we’ve compiled a list of 5 things every parent needs to know about guardianship to make sure your children are well looked after.

1 - Anyone can come forward to make a case for guardianship

Most people don’t realise that if both parents pass away and a guardian is not named in the Will, anyone can come forward to make a case for guardianship, but ultimately it is the Family Court that determines who should look after your children

Without naming a guardian in your Will there’s no evidence of your wishes. This means if you decided on a guardian for your child and discussed it with that person but didn’t put it in writing, it would be up to that person to go to the Family Court and make a case to obtain guardianship.

Just because you’ve asked someone to be your child’s guardian doesn’t mean they will be. This goes for godparents as well.

2 - Guardianship isn’t the same thing as having custody

There is a common misconception that guardianship and custody of a child are the same thing, but these two terms do have different legal meanings. While guardianship and custody both refer to certain legal rights with respect to a child, they are not the same.

As a guardian, you would have the right to make any medical, educational and other important life decisions based on the best interests of the child until they reach the age of 18 years.

In general terms, custody is looking after the child on a day-to-day basis. The person with custody is the “primary caretaker”. In a more technical sense, custody is the legal and practical relationship between the parent/guardian and a child in that person’s care.

3 - Naming an interim guardian can be a good idea

If you’ve named a guardian who lives overseas, perhaps a family member from your native country, you need to take into consideration the time and admin it takes for them to get to New Zealand. You’ll want to make sure your kids are looked after immediately so it would be a good idea to name an interim guardian while your overseas guardian is trying to find their way to New Zealand.

4 - The responsibility of a guardian

The role of guardianship is not something to take lightly. Whoever you choose to be your child’s guardian will be responsible for their overall welfare and upbringing, so you want to make sure this responsibility is taken seriously and goes to someone you know and trust.

For starters, if the children are under the age of 18, money is held in trust by the executor that is available to the guardian to go toward the child’s wellbeing and education. It is their responsibility to work closely with the executor to make sure the financial arrangements are all in the best interest of that child.

Not only is there a financial responsibility but also a moral responsibility. Guardians can make key decisions such as where your child will live or go to school, any medical treatments they need, what their culture, language, and religion will be, and any changes to their name. You want to make sure that the guardian you choose shares similar values to you since they will have a large role in the way your child is brought up.

5 - Your Will is your voice after you pass

As mentioned previously, having a conversation about guardianship is not the same as writing it in your Will. Although having a discussion with who you want as guardian is extremely important, for it to have an impact, you need to include this in your Will. Once you’ve passed, your Will is the last voice you have and although the decision is ultimately made in the Family Court, the judge will look favourably on your wishes, and there would have to be a very compelling reason for them to assign someone else (for example if the person selected is unfit for the role).

If you’re not around, you want to make sure your children will be taken care of financially but also that they’re brought up in a happy home and taught the necessary values you believe in. Take these into consideration when writing your Will for your children.