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What is a testamentary guardian?

When drafting your will, an important consideration is who to appoint as testamentary guardian for any minor children. Before appointing a testamentary guardian it’s important to know the role they will play in your child’s life should you die, and any restrictions on their powers. This article explores the role of a testamentary guardian.

What is a testamentary guardian?

A testamentary guardian is guardian appointed by a parent in their will for the care of their child (or children). To be eligible to be a testamentary guardian a person needs to be at least 20 years old and only one can be appointed.

It’s a common misconception that a testamentary guardian will be in charge of the day to day care of the child. Instead a testamentary guardian acts as an overseer in the child’s life and is only involved in big decisions. Custody cannot be provided for in a will. A testamentary guardian’s role is to provide input into the important decisions about a child’s upbringing such as education (where they go to school etc), religion, health (major decisions) and residence (where they live).  These responsibilities end when the child reaches 18 years old.

What if a guardian wants to take custody?

If a testamentary guardian wants to take custody of the child and be in charge of day to day care they will need to apply to the Family Court for a Parenting Order. An advantage of appointing someone as a testamentary guardian is that it gives them standing to make this application, where they would usually need to apply to the Family Court for permission to do so. If the testamentary guardian makes an application and there are living legal guardians of the child, they will need to provide evidence that they have sought to resolve any disputes with the other guardians through family dispute resolution, unless the situation is urgent.  If the Parenting Order is granted, the guardian can take over day to day care of the child.

Can I appoint a testamentary guardian to share guardianship?

If you appoint a testamentary guardian in your will and the remaining parent is still alive, the surviving parent would usually have the day to day care of the child. Your appointed testamentary guardian would be entitled to assist in big decisions involving the welfare of the child. This arrangement will be important if there’s conflict between the two sides of the child’s family, and a parent wants to preserve their family’s right to continue to have input into the life of the child.

So who does care for my children when I die?

As noted, generally, the surviving parent (or legal guardian) would remain the carer for the children unless they are unwilling, unable or unsuitable.  If both parents of the child have died, its assumed the family will take over care of the child. If there’s a dispute in custody a guardian (which may or may not be the testamentary guardian) can then file a Parenting Order with the Family Court.

Ensuring your children are looked after is one of the most important considerations when a parent is sorting their affairs.  The role of a testamentary guardian, while important, is commonly thought to be far more far reaching than it actually is. While a testamentary guardian won’t automatically take over the day to day care of the child, they are an important factor in ensuring your long term wishes are considered in the life of your child.

This article is current as at the date of publication and is only intended to provide general comments about the law. Harkness Henry accepts no responsibility for reliance by any person or organisation on the content of the article. Please contact the author of the article if you require specific advice about how the law applies to you.

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