

One of the biggest decisions parents face in estate planning is naming a guardian for their children. The guardian is a critical role – they step in as a pseudo-parent with the power and responsibility to make long-term decisions for your child, as well as having the daily care of your child. This person may largely influence your child’s wellbeing and life direction.
While nominating a guardian is essential, many people overlook the importance of naming backup guardians as well. Life is unpredictable, and while you may have a primary guardian in mind, circumstances could change that make this person unavailable or unsuitable to care for your children when the time comes.
Naming backup guardians ensures that your children will be taken care of no matter what. In this article, we explore why it’s so important to name backup guardians in your Will, how to approach this decision, and what to consider to ensure your children are protected in all scenarios.
When nominating any power positions in your estate plan, it’s important to nominate at least one backup (and ideally two or more!). This ensures that, come what may, there is always someone you know and trust ready to step into their nominated position.
There are many reasons why your first nominated guardian may not be able to act, for example:
Unforeseen circumstances
Life circumstances can change drastically. The person you choose as a guardian today may experience a change in health, financial situation, or family dynamics that make them unable or unwilling to fulfill the role in the future.
Geographical changes
Your chosen guardian could relocate far from where your children are growing up, making it difficult for them to provide the care and stability your children need. A backup guardian can step in if your first choice has moved to a location that complicates the arrangement.
Death or incapacity
Unfortunately, the reality is that the person you appoint as a guardian could pass away or lose decision-making ability (called “losing capacity”) before you do. Naming backup guardians ensures that someone else can step in if your primary choice is no longer an option.
Selecting backup guardians may feel overwhelming, especially if you already had difficulty choosing your first nominated guardian. However, it’s important to think through your options carefully to ensure your children’s wellbeing is covered in all scenarios.
Here are some key considerations when choosing backup guardians:
Shared values and beliefs
Just as with your primary guardian, it may be important to you that your backup guardian shares similar values, beliefs, and parenting philosophies. Consider factors such as their views on education, discipline, and religion to ensure that they align with your preferences for raising your children.
Practicality of the arrangement
The softer, more emotional, side of appointing a guardian needs to be balanced with the practical. Consider whether the backup guardian has the time, energy, and financial stability to raise your children. You may also want to think about how the backup guardian’s family dynamics, lifestyle, and location might affect your children.
Willingness and ability to take on the role
Before naming anyone as a backup guardian, it’s essential to have an open and honest conversation with them. Make sure they are willing and able to step into the role if needed. If the backup guardian has their own children or is caring for elderly parents, they may feel stretched too thin to take on additional responsibilities. You can have this conversation before or after you’ve had advice from your estate planning lawyer – if you’re unsure, best to speak to your lawyer first. That was you can go into the conversation feeling confident, and able to answer any questions about your plan that may come up.
Be prepared that your loved one may not want to take on the role. You may want to reassure your loved one it’s ok for them to say ‘no’ and it won’t impact your relationship with them. The benefit of your loved one saying no, is that you haven’t “wasted” that nomination and you can look at a different option as backup.
Relationship with your children
Ideally, your backup guardian should have a strong relationship with your children or be willing to build that relationship over time. Consider whether your children would feel comfortable and secure living with this person if the need arose.
You could choose to nominate two people to act jointly in the role of guardian. Joint guardianship can work well if both individuals get along and are willing to collaborate in the children’s best interest. However, it’s essential to ensure that the co-guardians have a clear understanding of their roles and responsibilities to avoid conflicts.
If you appoint more than one guardian to act at the same time then they are considered to have equal responsibility for your child, including equal power to make decisions. In practice, this may result in clashes over decisions about the care and welfare of your child. Another unintended consequence may be if you jointly appoint a family member and their spouse to act as testamentary guardians, and they later separate. The separated spouse will still have legal responsibility and power as your child’s guardian.
It is often preferable to appoint substitute testamentary guardians. This means you nominate a guardian to act in the first instance, but if they are unable to act for any reason then your second nominated testamentary guardian steps in. Having a “back up” testamentary guardian can give you piece of mind in case your first nominated person is unable to act.
Including backup guardians in your Will is a straightforward process but must be done carefully to ensure it’s legally binding. Here’s how to do it:
Consult a lawyer
It’s always advisable to work with an estate planning lawyer when drafting or updating your Will. They can ensure that your wishes are clearly articulated and that the appointment of your primary and backup guardians is legally sound.
Be specific in your language
In your Will, you should clearly state your choice for a primary guardian, followed by your choice(s) for backup guardians. Include full names and any necessary identifying information to avoid confusion.
List the order of priority
If you’re naming multiple backup guardians, be sure to specify the order in which they should step in. This avoids any ambiguity about who should take responsibility if your primary guardian is unable to do so.
Regularly review and update your Will
Life circumstances change, so it’s important to periodically review your Will and update your list of guardians if necessary. Ensure that the people you’ve appointed are still able and willing to serve. Make adjustments if needed.
One of the most important aspects of naming guardians is having open conversations with the individuals you’ve chosen. Make sure they understand the role they may need to take on and discuss your wishes for your children’s upbringing. These conversations can also provide peace of mind for you and your loved ones, knowing that your children will be cared for if the unthinkable happens.
It’s equally important to communicate your decisions with other close family members. Letting them know who you’ve chosen as guardians can help avoid any disputes or confusion later on, ensuring that everyone is on the same page about your wishes.
Use a Letter of Wishes to record your parenting directions and guidance for the guardian. Unlike your Will, your Letter of Wishes is an informal document and does not need to comply with strict legal rules or formats. What you choose to record depends on your unique values and preferences. You might include things like education preferences, screen time, who your child spends time with, extra-curricular activities…anything that’s important to you as a parent.
A Letter of Wishes minimises the potential for misunderstanding that may arise from a verbal discussion alone. It is a lasting communication tool, ensuring that your guidance is easily accessible despite the passage of time. Having this written record allows the guardian(s) to refer to your directions when they’re making a decision. It ensures everyone has a clear understanding of your wishes and expectations.
Unlike the formalities of a Will, a Letter of Wishes offers a more flexible and adaptable approach. It can be more easily updated and revised as circumstances change or as your child grows older, reflecting your evolving priorities and insights. This dynamic nature allows you to account for new developments and address emerging concerns without the need for formal legal amendments.
Beyond guardianship, estate planning for your children should include financial provisions to support their upbringing. This may be done through the use of a testamentary discretionary trust, which can ensure that the guardian has access to the funds necessary to provide for your children’s needs, such as education, healthcare, and day-to-day living expenses. A testamentary discretionary trust also offers greater protection for your children’s inheritance, ensuring it is used responsibly for their benefit. A testamentary discretionary trust is not suitable for all circumstances – please talk about it with your estate planning lawyer.
The process of choosing guardians for your children is one of the most important parts of estate planning. By naming both primary and backup guardians in your Will, you create a safeguard that ensures your children will be cared for no matter what life throws their way. While the decision can be difficult, taking the time to think through your options and having open conversations with your chosen guardians can provide you with peace of mind that your children’s future is secure.
If you’re ready to discuss appointing guardians or updating your Will, we’re here to guide you through the process with compassion and expertise. We’re committed to helping you create an estate plan that protects your family and provides certainty in uncertain times.
Choosing a testamentary guardian is a big deal.
It’s a decision that requires careful thought and consideration. To help you through this process, we’ve created a free e-book, The Complete Testamentary Guardian Workbook. This resource is packed with essential information on testamentary guardianship and includes key questions to help you narrow down potential candidates to the right fit for your family.
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