What is a testamentary guardian?

A testamentary guardian is someone who is appointed to provide daily care and responsibility for your children and to make decisions about your children’s long term care, welfare and development in the event that one or both of the child’s parents pass away.  A testamentary guardian generally has the same types of powers, rights and duties as a natural parent – including ensuring the children are fed, housed and educated.  

How is a testamentary guardian appointed?

Every parent with minor children should prepare and execute a Will or Deed which appoints a testamentary guardian to care for their children in the event that they pass away.  Provided there is no dispute about the appointment, the appointment will be recognised by, and take effect under, the Guardianship of Infants Act.

A testamentary guardian can also be appointed under a will to act jointly with a surviving parent.  This is particularly beneficial if you do not believe that it would be in the best interests of your child to be cared for solely by their other parent if you were no longer alive.  For example, if there is a history of domestic violence, drug or alcohol abuse or mental illness which impacts on the surviving parent’s capabilities or puts the child at risk. 

What if there is no testamentary guardian appointed or the appointment is disputed?

If a testamentary guardian is not appointed and both parents are deceased, any person with a “sufficient interest” will need to apply to the Family or Supreme Court for an Order that they be appointed as testamentary guardian.  This can be complex and expensive.  It may also result in competing applications and conflict between different family members or friends.

If the appointment is disputed, the Court has the power to overrule that appointment however, considerable weight will be given to any intentions that are clearly set out in your will.  This is why it is essential to have a properly drafted and executed will appointing a testamentary guardian.

Who should I appoint as a testamentary guardian?

Who you appoint to be a testamentary guardian is a decision which needs to be given considerable thought.  You should appoint someone that you trust will provide for your children’s needs – both physical and emotional and who will raise your children in the way you would like (consider their morals, values and lifestyle).  You should discuss the appointment with that guardian to ensure they understand your intentions and are willing to accept the position.

If your current will does not appoint a testamentary guardian for your children, or you do not have a will, contact WMD Law on (02) 9525 8688 or at wmd@wmdlaw.com.au for more information and assistance.