Willfully - Legally Binding Wills for Australians

Thinking about who would care for your kids if you weren't around is one of those tough, grown-up jobs nobody really wants to do. The same goes for planning for a loved one, or even yourself, who might one day need help making decisions. It's a big deal, and it’s totally normal to feel a bit overwhelmed by it all.

But here’s the thing: getting it sorted is one of the most important things you can do for your family. This guide is here to walk you through how to appoint a guardian in Australia, without the confusing legal jargon. We'll break down what a guardian actually does, the different types you might need to consider, and the exact steps to make your choice official.

In short, guardianship is about making sure someone you trust has the legal authority to make personal, lifestyle, and welfare decisions for your kids or for an adult who can no longer decide for themselves. For parents, naming a guardian is a vital part of creating a legally valid Will, and it’s the key to making sure your family is protected, no matter what.

What is a legal guardian?

Okay, let's start with the basics. In Australia, a legal guardian is a person you legally authorise to make personal and lifestyle decisions for someone else. It's important to know that this role is not about managing money, that’s a different job entirely (we’ll get to that in a bit).

A guardian is needed in two main situations:

For your kids if they’re under 18. If you pass away before your children are adults, the person you name in your Will to care for them is called a testamentary guardian. They step in to make all the big parenting decisions.
For an adult who has lost the ability to make their own decisions. This could be due to an illness, an accident, or a disability. The person appointed can be an enduring guardian (someone you choose in advance) or a court-appointed guardian (if no plan was made).

So, what does a guardian actually do day-to-day? Their decisions are all about a person's well-being. According to state tribunals, this can include things like:

Deciding where the person lives.
Making choices about their medical and dental care.
Figuring out what support services they need.

No matter what, a guardian's number one job is to always act in the person's best interests. It’s a role built on trust, care, and a huge amount of responsibility.

Understanding the different types of guardians

The kind of guardian you need to think about really depends on who you're planning for. Are you a parent thinking about your kids' future, or are you thinking about your own care down the track? Let’s break down the main types.

An infographic explaining the three main types of guardians in Australia: testamentary, enduring, and court-appointed.

Appointing a guardian for your children in a Will

A testamentary guardian is the person you officially name in your Will to take on parental responsibility for your kids if you (and their other parent) are no longer around.

Think of them as the person who will step into your shoes. They’ll be responsible for the big-picture stuff: your child’s daily care, their schooling, their health, and their general upbringing. They’ll be the one guiding them through life until they turn 18.

It's a scary thought, but if you don't name a guardian in your Will, the Family Court will decide who raises your children. This can cause a lot of stress and potential conflict among family members at a time that's already incredibly difficult. By making your choice clear, you save everyone the uncertainty and ensure your kids are raised by someone you know and trust.

Including a guardian in your Will is a cornerstone of a solid estate plan. Online platforms like Willfully offer a guided process to help you name a guardian and a backup in your Will, ensuring your wishes are clearly documented.

Appointing a guardian for an adult

This one is about planning for your own future. An enduring guardian is someone you appoint now, while you’re perfectly healthy, to make decisions for you later on if you lose the ability to do so yourself.

This is a proactive step that gives you control over your future care. It's a separate legal document from your Will and is set up under your state's laws. It's important to remember that this person can only make decisions about your health and lifestyle, not your finances. For money matters, you’d need to appoint an Enduring Power of Attorney.

Court-appointed guardians: What happens when no guardian is appointed?

So, what happens if an adult loses their ability to make decisions but never appointed an enduring guardian? In that case, a concerned friend or family member can apply to a state tribunal to have a guardian appointed for them.

These tribunals, like the NSW Civil and Administrative Tribunal (NCAT) or the Victorian Civil and Administrative Tribunal (VCAT), treat this as a last resort. It's a serious step because it involves taking away a person's right to make their own choices. This is exactly why planning ahead and appointing an enduring guardian yourself is so important: it keeps the decision in your hands.

The process of appointing a guardian

The steps for appointing a guardian look a little different depending on whether you're doing it proactively for your kids in a Will or if it’s a situation that requires a tribunal to get involved. Let's focus on the part you can control right now.

Steps to appoint a guardian for your children in a Will

For parents, this is the most direct and powerful way to protect your kids' future. Here’s how you do it:

A three-step workflow diagram showing how to appoint a guardian in Australia.

Choose the right person: This is the biggest step. Think about who shares your values on things like education, religion, and family life. You want someone who is stable, responsible, and, most importantly, already has a great relationship with your kids. It doesn't have to be a family member, but it should be someone you trust completely.
Have an honest conversation: This isn't a surprise you spring on someone in your Will. You absolutely must ask them first if they're willing and able to take on such a massive responsibility. Talk it through with them openly. It’s a huge commitment, and you need their consent.
Document it in your Will: Once they've agreed, you need to state your choice clearly in your Will. Include their full legal name and their relationship to you. It's also a very good idea to name an alternate or backup guardian, just in case your first choice can't take on the role when the time comes.

Ensuring the guardianship clause is worded correctly is key to its legal effectiveness. Some services, such as Willfully, provide templates and include a review by a qualified Australian lawyer to help ensure your wishes are documented in a legally sound manner.

Who is a suitable person to appoint as a guardian?

Not just anyone can be a guardian. There are a few legal boxes they need to tick. According to official guidelines from bodies like the State Administrative Tribunal of WA, a person nominated as a guardian must:

Be at least 18 years old.
Freely and willingly consent to taking on the role.
Be ready to always act in the best interests of the person they are caring for.
Not have any conflict of interest that would get in the way of their duties (for example, a financial conflict).

Key factors to consider when appointing a guardian

Choosing a guardian is about more than just picking your favourite sibling or best friend. It’s a decision that requires some deep thought about what’s practical and what’s truly best for the person who will be in their care.

Guardian vs. administrator: A key difference

This is one of the most common points of confusion in estate planning, so let’s clear it up. A guardian looks after a person's welfare, while an administrator (sometimes called a trustee for a Will) looks after their finances. They are two distinct and vital roles.

An infographic comparing the roles of a guardian and an administrator.

Here’s a simple breakdown:

Role	Responsibilities	Key decisions
Guardian	Manages personal, lifestyle, and welfare matters.	Where the person lives, what medical care they receive, access to services, and daily life choices.
Administrator / Trustee	Manages financial, legal, and property affairs.	Paying bills, managing bank accounts and investments, buying or selling property on the person's behalf.

You can definitely appoint the same person to do both jobs, and many people do. However, you can also split the roles. For example, you might choose your warm and nurturing sister to be the guardian for your kids, but appoint your financially savvy brother or even a professional accountant as the administrator to manage their inheritance. It all depends on your family's situation and who has the right skills for each job.

Can your choice of guardian be overruled?

This is a really important question. The short answer is yes, it can be.

Even if you’ve clearly named a guardian for your children in your Will, the Family Court of Australia has the ultimate authority and will always make a decision based on the "best interests of the child."

But don't let that discourage you. While the court can override your choice, a clear and well-considered nomination in a legally valid Will is seen as powerful evidence of your wishes. The court gives your decision a lot of weight and is very unlikely to go against it unless there’s a compelling reason to believe your chosen guardian isn’t suitable (for instance, if their circumstances have drastically changed for the worse).

By documenting your choice properly, you dramatically reduce the chances of any disputes and make it far more likely that your kids will be cared for by the person you wanted all along.

To see these concepts explained in more detail, especially the legal distinctions between guardianship and administration, check out the video below. It provides a clear overview of how the system works in practice.

<pre><iframe width="560" height="315" src="https://www.youtube.com/embed/7-7bQPBXiMM" title="YouTube video player" frameborder="0" allow="accelerometer; autoplay; clipboard-write; encrypted-media; gyroscope; picture-in-picture; web-share" referrerpolicy="strict-origin-when-cross-origin" allowfullscreen></iframe>This video provides a clear overview of the legal distinctions between guardianship and administration in practice.</pre>

Final thoughts on appointing a guardian

Appointing a guardian is a huge act of love and foresight. It provides a safety net for the people who matter most to you, ensuring they are cared for by someone you trust if you can't be there. It’s about taking control of the future and protecting your family from uncertainty and potential conflict.

We've covered the main types: testamentary guardians for your children named in your Will, enduring guardians for adults appointed in advance for yourself, and court-appointed guardians as a last resort. By understanding these roles and making a clear, legally sound choice now, you're giving your family one of the greatest gifts: peace of mind.

For parents, an important first step is getting a legally valid Will in place, as it’s the only way to make your choice of guardian official. Platforms like Willfully can help you create a lawyer-reviewed Will online, allowing you to formally appoint a guardian for your children and ensure this crucial task is completed.

Frequently Asked Questions

What is the first step in appointing a guardian in Australia?

The first step is to choose a suitable and willing person who you trust completely to act in the best interests of your child or the adult in question. This involves considering their values, stability, and relationship with the person they would care for, followed by having an open conversation with them to get their consent.

Can I choose someone who lives overseas to be a guardian?

Yes, you can appoint a guardian who lives overseas. However, you should consider the practical implications, such as the major disruption to your child's life, potential immigration issues, and differences in culture and education systems. It's often recommended to choose someone who can provide stability with minimal disruption.

What happens if I don't legally appoint a guardian for my kids?

If you don't legally appoint a guardian for your children in a valid Will, the decision of who cares for them will be left to the Family Court. This can lead to disputes among family members and result in a choice that might not align with your wishes, causing stress and uncertainty for your children.

Do I need a lawyer to appoint a guardian?

While you can appoint a guardian without a traditional lawyer by using a valid Will, the appointment must be documented in a legally binding way. Online services like Willfully provide a cost-effective solution where your Will, including the guardianship clause, is reviewed by a qualified Australian lawyer to ensure it's legally sound.

What is the difference between a guardian and an executor?

A guardian is responsible for the personal care, welfare, and lifestyle decisions of a person (like raising your children). An executor is responsible for administering your estate, which involves managing your finances, paying debts, and distributing assets according to your Will. You can appoint the same person for both roles, but they are distinct jobs.

Can I change my choice of guardian after naming them in my Will?

Absolutely. Your Will is a living document that you can and should update after major life events or if your circumstances change. You can amend your Will to appoint a different guardian at any time, as long as you follow the proper legal procedures to ensure the new Will is valid.