If a couple passed away, who will look after the children? Normally, the grandparents will apply to become the guardian ad litem (appointed by court) in the case where a couple dies intestate (have no written Will). If one parent passed away, the surviving parent is left to take care of the children. Generally, the surviving children will be taken care off in the following order, surviving parent, testamentary guardian and guardian ad litem (appointed by court).
The importance of personally selecting a guardian
The future can be unpredictable. For example, a couple may meet with an unfortunate accident while travelling or on holiday leaving the children behind. Similar situations may also happen to a parent or a single parent who is divorced or a widow or a widower. It does not have to be an accident but a fatal illness that can take a parent away. These are unfortunate circumstances that negatively affect any child’s life especially if he is still a minor (underage).
If no guardian has been appointed by the parents, the grandparents will step in as mentioned above. A serious problem may arise if both paternal and maternal grandparents fight for custody of the children. Once the parents are gone, who can determine and select the right guardian who has the children’s best interest in mind?
If the parents left behind a significant amount of money or fortune for the orphaned children, this could attract dishonest people. An uncle, aunt or a distant relative or cousin may view the guardianship as super-attractive with a fortune attached to it.
All parents want the best outcome for their children, good health, happiness and a comfortable life. Therefore, parents should not ignore their rights to appoint a trusted person to become the guardian of their children should the unthinkable happen. The appointed guardian does not become the “guardian of property/inheritance” belonging to the children automatically unless legally specified, for example by a court order or as stated in the Will.
Generally, the appointed Executor/Trustee will be responsible to manage the minor beneficiary’s assets or inheritance until he reaches the legal age of 18 years old. This way, the legal and financial interests of the children are protected.
Allowance for guardians
Providing some allowance for the appointed guardian is recommended. Taking care of one’s own children is not an easy job, what more taking care of other people’s children. This is what the guardian is going to be responsible for that is taking care of someone else’s child or children. The responsibility is huge and requires a tremendous amount of patience and sacrifice.
Hence, giving some money helps to make the job or responsibility easier to bear. The monetary reward is also a show of appreciation towards the appointed guardian for taking on an important role.
To recap again, it is important to appoint a guardian for your young children and state it in your Will. As a parent, you can choose a suitable guardian that has your children’s best interest in mind. It is equally important to leave some money or allowance for the guardian and stated in the Will, to reward him or her.
18 replies to "The Importance of Appointing a Guardian for your Children"
Should l need to put this clause as well under my Executor Appointment (l got two persons become my executor). The statement as this
“2. I hereby declare that in the interpretation of this my WILL the expression “my Executor and Trustee” shall (where the context permits) mean the executor(s) and trustee(s) for the time being hereof whether original or substituted and added and if there shall be no such executor(s) or trustee(s), shall (where the context permits) include the person or persons empowered by statute to exercise and perform my power and trust hereby conferred upon the executor and trustee thereof or by statute and willing or bound to exercise or perform the same.
3. Without affecting the generality of foregoing claim, I direct my Executor and Trustee to pay all my just debts (if any), medical expenses (if any), funeral testamentary and administration expenses from that part of estate to which such beneficiary is entitled or may in future be entitled to which I have the power of disposition by WILL”
Please advice … Thanks.
I couldn’t give you any legal advice.
But the clause do look like the standard.
Hi Mr Kc Lau,
I would like to ask if my friend is a single mother. She has finance problem to maintain her 5 kids. And we would like to adopt her younger daughters and become her guardian. It’s possible to get the legal guardian to let her stay with us?
Thank you
Hi KC,
I am a divorced single mom. I’m in the midst of preparing a will for myself. I currently have sole custody of my 7 year old whilst his father has weekend visitation rights. In the event of my passing, can I appoint my sister as my child’s legal guardian?
Yes you can appoint your sister in the Will. But legally, I think the father has the first right.
Dear KCLaw,
May I ask how to officially be named as guardian for my brother’s daughter? My niece is now 4 year old and her parents has divorced, and her mother gave up her custody.
In the event that my brother passing away, I would like to be named as guardian for my niece.
Alternatively, how to go about adopting her as my legal child?
Thank you for your advice.
You can contact Rockwills to ask for this kind of legal advice. I am not qualified to give you any advice in this matter.
Hi KC,
Could you give me the contact for Rockwill? Thank you so much !
Hi Kat, can contact them at their website: http://rockwills.com/
My nephew is 16 years old who had been taken care by my sister since birth. His father had passed away since he was three, his mother is still working but had many episopes with men. She only take him home for an overnight stay during weekends.
My nephew is very reluctant to go with her every single time. Now she has the intention to take him back for long term , my nephew is in very unhappy state as he loves his aunt (my sister) who had been looking and care for him all this years.
Can he possibly choose to stay with my sister legally as all this while she is his guardian? Can a 16 year old has the legal rights to say and choose for himself?
Please advise.
I have younger sister aged 8yrs old. Both of my parents passed away and my late mother has appointed me and my other sister as legal guardian, I have issues when applying for her passport. So I’ve submitted a consent letter for statutory declaration of guardianship to my 8yrs old sister to the native court. How long does it take for the native court to get back with the status? Does it recognize in civil court?
Hi Dep, So sorry that I don’t have experience in your matter. It is best to consult a lawyer who had done this before.
My child was born in 1993, age 19, can I will away my estate to him without a trustee and
guardian ? It seems the interpretation of the term ‘minor’ is different in Sabah and the rest of Malaysia. Thanks.
Hi Chak, you can do that. The trustee and guardian is only needed if at the time the Will is needed due to the testator’s death, the beneficiary is still a minor.
who has the rights to nominate the guardian ? a father or a mother has more rights?
both parents has the right to nominate guardian.
So make sure both are nominating the same person in order to avoid complication just in case both pass away at the same time.
I don\’t think so. You should be able to go by yluesrof but it will probably show up on the medical bill and your parents or guardian will probably find out. But just call the doctor and ask if you need to bring one or not. Hoped this helped and good luck!
Who is the default guardian if grandparents are no longer around?