Can my will actually decide who raises my children if I die?

What the appointment does and doesn't do

Section 61 of the Children's Law Reform Act lets a parent with decision-making responsibility for a child appoint, by will, one or more people to take on that responsibility after both parents have died. It only takes effect if the appointor is the only person with that responsibility at the time, or if both parents die together or in circumstances that make it uncertain who survived.

It does not override a surviving parent. If the other parent is alive and has decision-making responsibility, your will's appointment has no effect while they do.

Why the appointment expires in 90 days

The appointment lasts ninety days after it becomes effective, or until an application the appointee brings within that window is decided. The limit means a court reviews any long-term arrangement rather than leaving a child's care permanently to a document no one has looked at since it was signed.

In practice, the person you name needs to apply promptly, within the ninety days, for a court order confirming decision-making responsibility if the arrangement is to continue past that point.

Choosing a guardian

• Someone who already knows your children and shares your basic approach to raising them
• Willing and realistically able to take on the role, including financially
• Named with the other parent's agreement where possible, to avoid a dispute after you're both gone
• Backed up with an alternate, in case your first choice cannot act

Discuss the appointment with the person before naming them. Consent isn't a formal requirement for the will provision itself, but a guardian who didn't expect the role is far less likely to apply to court promptly.

We draft the appointment clause and can explain the ninety-day court step to the person you name.

Guardianship of the child versus guardianship of property

Section 61 also lets a guardian of a child's property name a successor guardian of that property, separately from who raises the child day to day. The two roles can go to different people: one managing the day-to-day home, another managing money left to the child, reporting to the court as property guardians are required to do.

If a child inherits directly, rather than through a trust in the will, court oversight of that money generally follows, whoever is named.

A trust is usually the better tool for money

Leaving money outright to a minor generally means it is held under formal guardianship, or by the court, until they turn eighteen, with limited flexibility along the way. A testamentary trust in the will, with a trustee you choose and an age or ages you set for payouts, usually serves a child's interests better than an outright gift or default guardianship of property.

This is a drafting choice made when the will itself is prepared, not something the guardian appointment alone can fix.