When people think of nominating a legal guardian, it is most likely for the purpose of selecting someone who will be responsible for watching and caring for their minor child, in the event that they cannot do so. However, it is also possible as an adult to elect a guardian should you lose cognition. This is called an Enduring Guardianship. In this article we will look at both nominating a guardian for children and the legalities involved in Enduring Guardianship.
Legal Guardianship for Minor Children
The most common type of legal guardianship to elect and set up, is one for your minor children. This is a person that you will ask to take care of your children in the event of your incapacitation and/or death. If you are a single parent, with no prior spouse or partner, and you have sole custody of your child, then you can elect a guardian for your child sans getting the permission or in agreement of another person. If you are married, or in a de facto relationship, then you and your spouse or partner would decide together who you want to take on this very important job. If you and your spouse are divorced, you still can elect the same person in your Wills, should both of you be unable to care for your children at the same time. This scenario is less likely as you and your ex-spouse are not likely to die, due to the same event, simultaneously.
What is a Legal Guardian?
As previously mentioned, a legal guardian becomes your child’s “parent” in the event that you are incapacitated or pass away. This person is selected by you. The most important part of electing a guardian for your minor children is making sure the person you select is ready, willing and able to take on this very important responsibility, until your child turns 18 years of age. Some things you will want to consider include:
- Is the person you are selecting responsible enough to care for your children?
- Does this person want to take on this responsibility?
- Can this person be trusted with your children’s finances?
- Will this person be as invested in your child’s overall welfare as you are?
- Do you believe this person will love and care for your children with the same intensity and investment as you would?
- Is this person over the age of 18?
For each family there may be many more considerations. It is important to examine all of the things that matter most to you in the raising of your child and make sure you ask and elect someone who will raise your child in the way that you want them to be raised.
How Do You Solidify the Election of a Guardian?
A guardianship is a legal relationship. As such, it must be specifically declared by the parent or parents of the children in question. You cannot simply ask someone to be the guardian of your child without codifying your nomination in writing. There are different ways to make this selection legal and binding.
- You can include a statement in your Will which indicates who the person is that you are nomination to be the guardian of your child.
- You can draft and legalize a separate document known as Guardianship Papers.
- If you do not take either of these steps, and your child is left sans parents, the court can and will, elect a guardian for your children. The person selected by the Court is usually the next of kin. Children will be consulted with regard to the choice of guardian for them. If your child is over the age of 12 years, they will be required to provide written consent for the person chosen to become their guardian to take on this position in their lives.
Selecting a Second Guardian
It is strongly recommended that in addition to selecting a first guardian, that you also select a second guardian. When doing so, you will include language in your guardianship directive that, in the event the first guardian named cannot take on the responsibilities at the time of inception, the second guardian can take this position instead. It is important to talk to your second choice of guardian and make sure they are willing to take on this level of responsibility.
Enduring Guardianship
The other form of guardian is called an Enduring Guardianship. This type of guardian is meant to care for an adult who can no longer care for themselves. Again, this is a legal declaration.
Why Would an Adult Elect an Enduring Guardianship?
An adult, over the age of 18 years, might elect an enduring guardianship for themselves because they are concerned that they might lose their ability to make sound healthcare, financial and living conditions decisions.
Is an Enduring Guardianship Permanent?
No, it is not necessarily permanent. An enduring guardianship can “spring” into effect at any point that you define, within the legal document that creates the enduring guardianship. Here are some examples:
- In the event you become temporarily incapacitated due to illness or accident
- In the event that you become permanently incapacitated due to a progressive disease
In the instance of electing an adult to care for your needs in the off chance that you cannot do so for yourself, it is necessary and important to discuss this with the person you are nominating to be sure that they are willing to take on these responsibilities for you. In addition, it is important to remember that an enduring guardianship can be revoked by the elector at any time.
Electing a guardian, or guardians, for your children is an important task and one that should not be taken lightly. In addition, if you have concerns about your own ability to care for yourself, either in the event of an accident or an illness, it is also important to consider electing an enduring guardian. In both instances, it is highly recommended that you trust the person you are electing, implicitly. And, lastly, that you ask their permission before electing them.
In the event that you find yourself in need of assistance, please contact the law offices of Owen Hodge Lawyers. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to call us at your earliest convenience to schedule a consultation at 1800 770 780.