When the ground shook in Wellington last week I was already in my babies' room. One of my twin girls was having trouble sleeping and I was camped out on a blow-up mattress between their cots. Then the earth started to rumble and I cried out for their dad so we both could shield our babies by doing clumsy turtles over their bodies.
In those 40 or so seconds that felt like forever I thought about what I would do if our house came loose, slid down the hill and tumbled into the ocean. Mercifully the shaking was soon over - and the earthquake even seemed to have rocked one of my babies to sleep. (There wasn't much sleep to be had afterwards, but then that's not really much different from most of my nights.)
A decent shake reminds us of how fragile we all are. Nobody likes thinking about their own mortality, but since becoming a mother I sometimes wonder what would happen to my babies if their dad and I both died.
We originally come from Europe and aren't religious, so we don't have extended family or godparents who would more or less automatically look after our kids if we aren't around. In Christian pakeha societies, parents used to choose one or more godparents when they christened their child. These godparents would not only help with the religious education of the youngster but also "inherit" the parent role if the mother and father both died.
While a lot of parents still baptise their children, some families still choose godparents even if they're not religious. But the law states that religious or not, godparents are nothing but a nice gesture.
"The best thing parents can do is to appoint a testamentary guardian," family lawyer Michelle Duggan explains.
A parent can name a person or two people in their will (or another formal legal document) to be a guardian if the parent dies. A testamentary guardian has the same rights as an 'ordinary' or parent guardian but that doesn't mean they necessarily assume theday-to-day care of the child.
"As a parent you are a caregiver and you are a guardian. It is important to understand the difference and the caregiving part is all of those decisions you make during the day, like what time your children go to bed, how to discipline them, how much screen time they get and so on. But guardianship is quite different to that." Duggan explains.
Guardianship is the right to have a say in the big issues, like where the children live, their education, religion and health issues. So by appointing a testamentary guardian you are giving your nominated person (or people) your guardianship rights on your death. You can't however determine who is going to be the children's caregiver as that is an issue that will be decided after your death and your testamentary guardian(s) will be involved in those discussions.
You can express a wish though about who you would like to raise your children (and that might be the same people you make testamentary guardians) but you can't force that decision on them. For example; you and your partner might decide to appoint your parents testamentary guardians, but if you both died at the same time your parents might say "We're happy to support and be involved as guardians but we're not able to provide for the care of the children." Then the family would usually get together and decide who could best look after the children. The caregivers might even then apply to the court to be appointed further additional guardians of the children but they are not obliged to.
Duggan also points out that, of course if one parent dies and the other survives, the surviving parent remains a guardian in addition to the testamentary guardian appointed in the deceased parent's will.
"A lot of people wonder what would happen if their children haven't much to do with the other parent. Would the other parent automatically get to care for the children? And my answer, as frustrating as it is, is 'it depends'".
There might be a grandparent who has been really involved into the child's life and even if they're not a testamentary guardian it could be agreed that the child will live with them and not the dad they don't have a relationship with.
"It usually sorts itself out through discussions within the family. Otherwise it goes to court and is sorted out there" she says.
Duggan gives us an important piece of advice: "A lot of people find it very difficult to have this conversation, but if you want people to respect your wishes you should let your family and testamentary guardians know and back it up in your Will to give them some legal rights."
So this is what have I learned. First, my partner and I have to decide who we want to be the testamentary guardian of our girls. Then we have to discuss that role with him or her and ideally let the rest of our family know too. The next step would be to look at our finances to make sure there would be some money available to help raise the kids. Finally, we would ask a lawyer to help us write our wills.
And with those ugly fears and concerns out of the way we'd have peace of mind and could move on with life. And remind ourselves that we probably won't die any time soon!
stuff.co.nz