The Importance of Backup Guardians in Your Will
Choosing someone to care for your children if you die is one of the biggest decisions you may make when creating your estate plan.
You may already know exactly who you would want to take on that role. Or you may find yourself staring at a list of people you love and trust, wondering how on earth you are supposed to choose.
Once you have chosen your preferred guardian, there is another important question to consider: Who would you want to care for your children if your first choice could not?
This is where backup guardians come in. Life changes. Relationships change. Health changes. The person who feels like the perfect choice today may not be willing or able to take on the role in the future.
Appointing backup guardians gives you a plan for those circumstances and provides further guidance about the people you would trust to care for your children.
1. Why Should You Appoint Backup Guardians?
Your Will can record your wishes about who you would want to care for your children if you die.
However, your first choice may not always be able or willing to take on the role when the time comes.
There are many reasons this could happen.
Their circumstances may change
The person you choose today may experience significant changes in their life.
They may develop health issues, experience financial difficulties, have changes in their family circumstances, or simply reach a point where they no longer feel able to take on the responsibility of raising children.
They may move away
Your preferred guardian may relocate interstate or overseas.
Distance alone does not necessarily make someone unsuitable, but it may affect the practical arrangements for your children, particularly if moving would mean a significant change to their home, school, support network, or relationship with other important people in their lives.
They may die or lose capacity
Your chosen guardian may die before you or lose the ability to take on the role.
Having one or more backup guardians means your estate plan can continue to reflect your wishes if your first choice is no longer an option.
They may simply say no
A person may be the perfect choice in your mind and still decide that they cannot take on the responsibility.
That is one of the reasons we recommend speaking with anyone you are considering appointing. It gives them an opportunity to understand what you are asking and to tell you honestly whether they would be willing to take on the role.
If they say no, you can make another plan.
2. How to Choose Your Backup Guardians
Choosing backup guardians involves many of the same considerations as choosing your first-choice guardian.
There is no perfect checklist that will give you the answer, but these are some useful things to think about.
Your values and approach to parenting
You may want to consider whether the person shares values that are important to you.
This could include their approach to:
education
discipline
religion
family relationships
lifestyle
healthcare
extracurricular activities.
They do not need to parent exactly as you would. Nobody will.
The question is whether you trust them to raise your children in a way that feels consistent with the things that matter most to you.
The practical realities
It is easy to focus entirely on who loves your children the most. Practical realities are also important.
Think about whether the person is likely to have the time, energy, support, and capacity to take on the responsibility of caring for your children.
You may also want to consider:
where they live
whether they have children of their own
their family circumstances
their support network
their relationship with your children
whether your children would need to move away from their existing school, friends, or community.
Their willingness to take on the role
Have an open conversation with the person before appointing them, where appropriate.
You can explain why you are considering them, what you have planned financially for your children, and how you would want your estate to support them.
Give them space to say no.
It may feel awkward, but it is better to have that conversation now than leave an appointment in your Will that the person is unwilling to accept.
Their relationship with your children
Your backup guardian does not need to be your children's closest relative or favourite person.
They may not even have the same relationship with your children as your first-choice guardian.
However, it is worth considering whether your children know them, trust them, and would be likely to feel safe and supported in their care.
If your children are still young, you can also think about whether there is an opportunity to strengthen that relationship over time.
3. Should You Appoint Joint Guardians?
You may consider appointing two people to act together.
For example, you may want to appoint a sibling and their spouse, or two other people who you believe would work well together.
This can be appropriate in some circumstances, but it is important to think about how the arrangement would work in practice.
What happens if the two people disagree about an important decision? What happens if their relationship breaks down? What happens if one person no longer wants to act?
These issues do not necessarily mean that appointing two people is the wrong choice. They simply need to be considered when structuring your estate plan. In many circumstances, appointing guardians in an order of preference may provide greater flexibility.
For example, you may nominate your first-choice guardian, followed by a second-choice guardian who would take on the role if the first person could not. You may also wish to appoint more than one backup.
The right approach will depend on your family and circumstances.
4. How Should Backup Guardians Be Named in Your Will?
Your Will should clearly identify the people you would want to take on the role and the order in which you would prefer them to be considered.
For example, you may nominate:
Your first-choice guardian
Your second-choice guardian
A further backup guardian.
Clear drafting helps communicate your wishes and avoids unnecessary uncertainty about who you would want to care for your children.
It is also important to remember that the circumstances surrounding the care of children can be complex.
The appointment of a testamentary guardian does not remove the need to consider matters such as surviving parents, existing parental responsibility arrangements, and the circumstances affecting the child's care at the relevant time.
This is one reason why obtaining legal advice tailored to your family circumstances is important.
5. Keep Your Guardian Appointments Under Review
The people you would choose to care for your children today may not be the people you would choose in five or ten years.
Your children will grow. Your relationships may change. Your chosen guardians' circumstances may also look very different.
Review your guardian appointments when there is a significant change in your life or theirs.
This could include:
a marriage or separation
the birth of children
a significant change in health
a relocation
changes in your relationship
changes in your children's needs
a change in the willingness or ability of your nominated guardian to act.
Regularly reviewing your estate plan gives you an opportunity to make sure your appointments still reflect your wishes.
6. Talk to Your Chosen Guardians
A Will can record who you would like to care for your children. A conversation can help the people you have chosen understand why.
Talk to your chosen guardians about the role and give them an opportunity to ask questions.
You may wish to discuss:
why you have chosen them
what financial arrangements you have made for your children
where important documents are stored
the role of your executor or trustee
any important wishes you have about your children's upbringing.
You do not need to give them every detail of your estate plan. The purpose of the conversation is to make sure they understand the responsibility you are asking them to consider.
7. Use a Letter of Wishes to Provide Guidance
Your Will is a legal document and has an important job to do.
Your Letter of Wishes can provide a more personal space to record guidance for the people caring for your children.
Depending on your circumstances, you might include your wishes about:
education
healthcare
family relationships
religious or cultural matters
extracurricular activities
screen time and technology
important friendships
your children's personalities and individual needs.
A Letter of Wishes is generally not legally binding and cannot override legal obligations or decisions that need to be made in your children's best interests.
It can, however, give your chosen guardian a better understanding of what matters to you and provide guidance when they are making decisions in circumstances you could never have fully anticipated.
It can also be updated more easily as your children grow and your priorities change.
8. Think About the Financial Side of the Plan
Choosing a guardian is only one part of planning for your children's future.
You also need to consider how their upbringing and inheritance will be funded.
Depending on your circumstances, your Will may include a testamentary discretionary trust to hold and manage your children's inheritance.
The trustee would be responsible for managing the trust in accordance with the terms of your Will and their legal obligations.
The trust may allow funds to be applied for your children's benefit, including expenses relating to their education, healthcare, housing, and general wellbeing.
The person caring for your children and the person managing their inheritance do not necessarily need to be the same person.
In some families, appointing different people to these roles may be appropriate. In others, the same person may be the right choice.
The best structure will depend on your family, the assets you expect to leave behind, and the people you trust to take on each role.
Planning for More Than Your First Choice
Choosing a guardian for your children can be emotional and difficult.
Adding backup guardians to your estate plan does not mean you expect something to happen to your first choice. It means you have thought about what you would want if circumstances changed.
By considering your first choice, one or more backup options, and the financial arrangements that will support your children, you can create a more flexible plan for their future.
If you would like advice about appointing guardians and creating an estate plan for your family, we're here to help.
Download The Complete Testamentary Guardian Workbook to:
protect your children’s future
know the what, who, and why of testamentary guardians
questionnaire included to find the best match for your family