Your children are precious; make sure they will be looked after if you die

Relationships (Family)

The recent tragic deaths of Jerry Collins and his wife bring to light the importance of not only having current Wills but of having provision for the care of any child you may have should both parents die. Many people assume that if they die, the other parent will be there to take care of the child.

Issues arise for the devastated families of who has the right to care for such a child, and make the important decisions such as schooling and health. Without the appointment of guardians in Wills (known as testamentary guardians) no one has the right. This can lead to not only delays and expense but perhaps infighting as extended family try to do what they think is right.

The decision as to who to nominate as testamentary guardians is an important one. Considerations might include such things as who the child might already have a relationship with, cultural and religious considerations, special needs of the child and the situation of the proposed guardians themselves. This is not something that should be sprung on the guardian but something that should be discussed. It is a very unlikely occurrence but it needs to be allowed for.

Both parents need to make this provision in their Will. Such an appointment is usually conditional on the other parent dying first, but sometimes a testamentary guardian is appointed even if the other parent is still alive. If one parent has already died the surviving parent must make sure that there is someone there to take over in the event of their death. Of course if the proposed appointee is no longer suitable a new provision needs to be made.

If the worst happens where both parents die and no allowance is made for a testamentary guardian, then applications need to be made to Court. If the child is under sixteen this is for care (custody) and guardianship orders.

Even if the child is aged over 16 there is a need for a guardian until they are 18, so an application for guardianship orders is still needed. Until a guardian is appointed no one has the legal right to make any decisions about that child. No-one can give consent to medical treatments or enrol the child in school.

This is one of the most important decisions you can make as a parent. Don’t leave it to others to make as they may not make a decision that you would agree with and the added stress at an already difficult time would be the last thing you would want your loved ones to deal with.

If you would like more information on this or any other related issues feel free to contact us on +64 3 379 9940 or email cavell@cavell.co.nz.

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Copyright © Cavell Leitch. All rights reserved. Redistribution is only permitted with express written permission. For enquiries please contact us. This article by its nature cannot be comprehensive and cannot be relied on by clients as advice. It is provided to assist clients to identify legal issues on which they should seek legal advice. Please consult the professional staff of Cavell Leitch for advice specific to your situation.