Protecting the interests of infant children - Choosing a testamentary Guardian

For clients with infant children, the appointment of a Guardian is an important decision that has a bearing on the long-term interests and welfare of children, and there are a number of considerations that advisers should consider.

The Guardian should preferably be someone who can be trusted, has an existing relationship with the children, and preferably live close to the children. This is because the welfare of the children is a paramount consideration, and there can be a significant social and emotional impact if children are relocated away from their current school, friendship groups and other social contacts.

When discussing with a client the appointment of a Guardian, the Guardian should be a person who is not the client's Executor. This is because if the Guardian was also the Executor, there is a potential conflict of interest in the use and management of funds to be held on trust until the child reaches their prescribed age, typically above the age of 18 years.

Most Wills provide for an "advancement clause" meaning that Executor can release money for the benefit of an infant child before they reach their prescribed age for their maintenance, education and advancement”. In these circumstances, it is likely that the child's Guardian will usually seek funds from Executor to meet their living costs as well as costs of education and other related expenses.

Typically a Guardian is appointed when the client and their spouse/partner passes away; however, in the case of blended families, a client may want to appoint a Guardian if they pass away before their spouse passes away, particularly if there is a child from a former relationship and the child's welfare is better served with living with the ex-partner.

Inherit's AI legal bot will help you navigate the issues around Guardianship. For example, it will ask you if your client wants to nominate more than one Guardian for all or different children and if there are specific wishes relating to their care and upbringing. This could include the possibility for the trust lending money to the Guardian to expand their home or for other uses related to the children.

This is just another way that the inherit system will help you fully and competently navigate these issues, without any prior knowledge or experience, before they are reviewed with an Inherit panel lawyer.