How to Choose a Testamentary Guardian for your Child

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How to Choose a Testamentary Guardian for your Child

What is a Testamentary Guardian?

A Testamentary Guardian is a person appointed by you in your Will to have the rights and responsibilities as that of a parent for your child.

Who can appointment a Testamentary Guardian?

Any parent or guardian may appoint a guardian for a child who is under the age of 18.

How is the appointment of a Testamentary Guardian made?

An appointment of a Testamentary Guardian is made through your Will.

When does the appointment take effect?

The appointment takes effect either:

  1. on both parents’ death; or
  2. on the first parents’ death if specifically stated in the Will that the remaining parent and appointed guardian are to act jointly.

What decisions does the Testamentary Guardian make?

The Testamentary Guardian has the power, rights and responsibilities for making decisions about the long-term care, welfare and development of the children. This includes:

  • education;
  • religious upbringing;
  • decisions as to medical treatment;
  • applying for the child’s passport;
  • consenting to the child’s marriage;
  • commencing legal proceedings on behalf of the child;
  • appointing a guardian for the child in the event of the guardian’s death;
  • rights to bury the child should the child die; and
  • agreeing to the child’s adoption.

The Testamentary Guardian does not automatically have the right for the “daily care” of the child. The Testamentary Guardian only has this right if the child has no surviving parent and there are no court orders (such as a Family Court order) in place giving daily care to another person.

Who do I choose to be Testamentary Guardian?

The decision as to who you should appoint to be the Testamentary Guardian of your child is a decision that only you can make. Some factors to take into consideration should be as follows:

  • Does the person have a good relationship with the child?
  • Is the person a similar age to you?
  • Is the person capable of caring for your child until they turn 18?
  • Is the person willing to be the guardian of your child? You should ask the guardian before appointing them.
  • Will the person raise your child how you would like your child raised?
  • Does the person have the same religious beliefs as you?
  • Does the person have the same discipline beliefs as you?
  • Is the person living in the same location as you? If you appoint a guardian in another area, State or country, then the child could be uprooted to live with the guardian.
  • Is the person financially stable?
  • Does the person have a good relationship with the person you have chosen to be executor?

We generally recommend that your executor and Testamentary Guardian be different persons because a conflict of interest may arise if the same person is appointed in both roles.  This conflict of interest can arise because the executor has the discretion to pay money to the Testamentary Guardian for your child’s education, maintenance, development and support in life. If they are the same person, there is no-one to ensure that the money used for your child’s welfare is being utilised appropriately.

Can I appoint more than one Testamentary Guardian?

Yes you can appoint more than one however they will act jointly so they must make any decisions together. If there is a disagreement then this may cause distress between the guardians and/or the child. You may also like to consider appointment one guardian but an alternative should that guardian be unable or unwilling to act as guardian in the future.

Can my appointment of a Testamentary Guardian be challenged?

Yes. If there is a surviving parent, then the surviving parent can apply to the Supreme Court to have the guardian’s appointment suspended or removed. If both parents have died, then anyone who wishes to challenge the Testamentary Guardian must apply to the Family Court. If no challenge is mounted in either court then the appointment of the Testamentary Guardian is binding.