Generally, a legal guardian is someone who has the authority, as well as the obligation, to handle and care for the personal interests and properties of another individual. Basically, guardians are appointed for the care of a minor or an adult with disability or a senior with infirmity or due to old age.
In Australia, one way to appoint a guardian for the legal care of a child is through the use of a Will. Parents may nominate in their Last Will and Testament a guardian for their children aged under 18, in the event they die. However, this way of appointing a guardian is not binding and can be overridden by the Family Court.
Using the Will is helpful in preventing conflict among members of the family given the clear intentions of the parents. This can work if the court finds the guardian appointed appropriate. However, it remains to be the court’s discretion to remove the appointed guardian or appoint another one if it is to the best interest of the minor.
The chosen guardian becomes responsible for the child’s lifestyle decisions, his daily and long term welfare, and the care for his housing, clothing and educational needs. The guardian’s role is vital to a child thus the necessity for careful and thorough decision making on who to appoint. It is important to determine if the prospective guardian is willing and able to take the responsibility and has the same beliefs as with the parents on how they intend to raise the child. Finding one that is close to the parents’ age would be ideal.
The parents leaving the Will may indicate in it the detailed factors and conditions that they would prefer the guardian to considered when raising their child. A substitute guardian may likewise be indicated in the Will in case the first choice changes its mind and refuse to take the responsibility.
If there is no guardian appointed in the parents’ Will or if the Court finds the person appointed to be incapable of being one, then a new guardian will be chosen by the Court. Details in appointing a guardian for children may differ among jurisdictions and territories but they all go through the same process, which are the following:
- Application for guardianship;
- Investigation by the Court;
- Hearing; and
There are other means by which a jurisdiction, depending on its current laws, appoints guardians for minors. This is particularly true for those with mental problems, such as in New South Wales, where an individual may be subjected to a guardianship order.