In recent weeks we have been increasingly asked by our family law clients; what happens to my minor children if I die?  It is a scary question, but a reasonable one at any time when you have minor children.  

In an intact relationship, generally most parents turn little attention to this issue.  However, in families where parents are separated or did not ever cohabitate in an ongoing relationship at any stage, this can be a cause for some anxiety.  

In Queensland it is possible to nominate someone in your Will as a guardian of your children in the event of your death.  They are called a “Testamentary Guardian”.  The Will needs to provide that their appointment commences upon the testator’s death, otherwise the appointment will only take effect upon the death of the last surviving parent of the child.  

Once a Testamentary Guardian is appointed, they (the Testamentary Guardian) has the authority to make decisions in relation to the child’s long-term care, welfare and development provided that:

  1. The child has no surviving parent; and 
  2. No-one else has authority to care for the child pursuant to an order of a Court such as the Family Court or Federal Circuit Court.

If the other parent of a child is still alive at the time of death of one parent, any disputes about caring for that child are determined by the Family Law Courts, and the ordinary provisions of the Family Law Act are applied by that Court to determine how the child should be cared for.  

Because both Succession Law and Family Law can overlap when it comes to the issue of who cares for a child if a parent dies, it is important that you obtain tailored advice specific to your personal circumstances.  Whilst these matters can be confronting to contemplate, obtaining such advice then empowers you to put in place tools relating to the care of your minor children in the event of your early passing.  

If you would like to know more, for a fixed cost, no obligation initial consultation, contact us on 07 3262 6122.