Is appointing a guardian under a will final?

Nobody likes to think that they will not always be there to take care of their children. But it is important to plan for that eventuality. Children under 18 have to have someone with parental responsibility for them. If it is not the parents, or one of them, then there will be some other person appointed as the child’s guardian.

For more information, please see our page Parental responsibility.

Many people use their will to appoint guardians for their children. But that is not the end of the matter. There are important situations when the will does not have the final word on guardianship of children.

A guardian does not wish to act

There are various reasons why an appointed guardian might not wish to act when the time comes to do so. For example:

  • they have simply changed their mind;
  • they have had their own children since the will was made;
  • when they were appointed they were a couple, but are no longer together;
  • they have moved away, perhaps overseas;
  • they have become ill or disabled; or
  • they have responsibility as a carer for someone who is ill or disabled.

A person cannot be forced to act as guardian. So just because your will names a person as guardian, it does not mean that that person has to accept the responsibility. If they are choosing to step down, they can disclaim the role.

The appointment does not take effect

Obviously there may be circumstances where a guardian you have appointed in your will is not able to act, or the appointment is of no effect. For example:

  • the named guardian has died before you, but you do not amend your will accordingly;
  • they cannot be traced, or are serving a prison sentence;
  • your children have reached the age of 18;
  • someone else is appointed by the court; or
  • there is someone else with parental responsibility.

Someone else with parental responsibility

If a child’s parents are not together – whether they have separated or divorced – both parents still usually have parental responsibility (unless the court has ordered otherwise).

This means that on the death of the parent that the child lives with, their other parent will usually take over the care of the child, even if the deceased parent has nominated someone else as guardian. In other words, the appointment of a guardian in a will does not override the parental responsibility of a parent.

The court will always treat the welfare of the child as paramount.

Ensuring that your choice of guardian is followed

You can’t absolutely guarantee that the person you want to look after your children will be able to do so when the you die. But there are steps that you can take to make sure that you are choosing wisely and that your choices have the best prospect of being implemented.

Obviously you should change your will on becoming aware that a guardian does not wish to act or can’t do so. But sometimes that doesn’t happen.

So it’s a good idea to:

  • appoint more than one guardian;
  • make sure they know you have appointed them as guardian;
  • check every so often that they are still willing and able to act; and
  • appoint substitute guardians.