QLD Bequeathing Guardianship if I were to Die?

Discussion in 'Family Law Forum' started by 247mum, 19 October 2018.

  1. 247mum

    247mum Active Member

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    Is there any way to bequeath guardianship / appoint a guardian if I were to die / become incapacitated?

    Currently have Joint Parental Responsibility (Consent orders 2012), but need to apply for Sole Parental Responsibility as the Father is no longer in contact, not able to sustain a co-parenting relationship, or a relationship with the children. (medically unfit, drug use, Domestic Violence history).

    My concern is that if something were to happen to me, they cannot go to him for lots of reasons I won't go into here, but it's a pretty bad lifestyle he's leading. Is there anything I can do to protect my children from him?

    Many thanks :)
     
  2. sammy01

    sammy01 Well-Known Member

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    Not really. Look more info is needed... So let me give you my example. I'm step dad. Have been living with partner and stepchild for 4 years. Dad is on the scene but only a few times a year. If my partner died, I'd apply to court for primary care. I reckon I'd be a good chance...
    Scenario 2. Primary carer dies, Grandma takes over looking after the kids. Dad disputes. Hard one to pick.

    So no you can't appoint a guardian. But if you did die then dad's absence would not work in his favour. And if you were to try to get some sort of legally enforcable document along those lines you would either need dad to agree or apply to court for court orders. Neither option sounds like fun?
    Solution? exercise, look left and right before you cross the road, swim between the flags, have a medical check up every year and don't worry about it. Worrying about it will only cause stress and stress kills and not dying solves your problems...
    How easy was that. I should charge money for my wisdom...
     
  3. Rod

    Rod Well-Known Member
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    Who were you thinking about giving parental responsibility to if you die?
     
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  4. 247mum

    247mum Active Member

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    My brother and my cousin jointly as guardians and trustees... having said that, my 'babysitter' (who also runs the outside school hours care and is studying to be a doctor, and is like a big sister to my children) would be the primary carer in our house, or another person as appointed appropriately by the trustees/guardians - essentially nothing would change for the children. They would be able to attend their school etc. keep their pets, lives, school and social, emotional network of friends and families. The alternative of going to dad means they move away and be living with a depressed, suicidal, unemployed, aggressive, meth addict (and worse that I won't go into - he has experienced a significant fall from grace, regrettably).
     
  5. Rod

    Rod Well-Known Member
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    OK.

    What I'd do is think carefully about how I see it working, then go see a lawyer and have them prepare a will that will include, amongst other things, a testamentary guardian/s.

    My ex, as a parent, could fight the appointment in a Family Court so I'd have solid evidence that can be used in court as to why the ex should not have care of the children. The court papers used for sole parental responsibility will be a good start :)

    I'd prepare the will now, and then make sure the court papers are filed with my will so that the guardians have ready access to them if needed.
     
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  6. 247mum

    247mum Active Member

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    Thank you for your time and response Rod - very pragmatic.

    I'm going to nominate the guardians (testamentary) regardless. It won't make the Will invalid, just provide an additional piece of evidence. Would be easier if the law provided for you to officially nominate someone to take on your parenting role in your absence rather than someone having to bear the cost and stress in an already stressful time. In the absence of such sensibility, your suggestion sounds excellent. :)

    I'm also thinking maybe I can work a clause into the new parenting consent orders I'm organising, to facilitate appointment of a guardian. He already agreed to sign SPR at mediation last year when it was brought up. It was me who said no at that point. He now has my number blocked and I don't know where he is. I just found out yesterday that the new people in our old house had the police surround the house looking for him after they moved in, all the walls were smashed, scrawled crazy writing on the walls, and like a squat (this was our family home that we owned & he got in the property settlement)... not an environment the children need to be around.

    Again, thank you for your help - any wisdom is appreciated as I want to get it right this time - last time I went through this I was pressured into him having time with the children against my better judgement. Despite agreeing to consent orders that gave him time with the children, my parting words to the Court were "I hope that them having a relationship with their dad is the better of the 2 evils, the other one being that they don't have a relationship with him". I was wrong and the children suffered unnecessarily. In hindsight I would have retained interim orders for 2 years, until the children could voice what was happening, as the children were too young at the time, but I was pressured by his lawyer to sign final orders. I hope anyone else reading this learns from my experience and finds the strength and belief and fortitude to stand by what is right for their children and not be drawn into the legal games.
     
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