Appointing a testamentary guardian
An important part of preparing wills for parents or potential parents is the naming of one or more guardians for their current or future children.
Deciding who should be responsible for your children upon your death can be daunting to think about, but it allows you to be prepared for your children should such situation arise.
Ordinarily, both parents are responsible for the care of their children under the age of 18, unless this has been altered by a Court order. If one of the parents die, the surviving parent takes over this role.
Where guardians are appointed by both parents in a deed or in their will, then those guardians act jointly after the death of the surviving parent.
If a dispute arises, the guardian or any authorised person may apply to the Court and the Court can make various orders relating to the parent and/or guardian. The Family Law Act 1975 requires the Court to act in the best interests of the child when making a decision that affects the child.
Testamentary guardianship ends when the child reaches the age of 18 years.
The testamentary guardian is responsible for the daily care as well as the long-term decisions, such as schooling, extra-curricular activities and health care, for the child.
The executor of your will also has the ability to hand over funds allocated for your children to the guardian to be used for that child’s maintenance education or advancement in life.
You should consider the following when determining who to appoint as the testamentary guardian in your will:
- Your relationship with the proposed guardian;
- The proposed guardian’s relationship with your children;
- The thoughts and views of the proposed guardian- have you discussed it with them?
- The thoughts and views of your children – you may wish to discuss the matter with your children if you deem it appropriate in the circumstances – what do they think?
- Your executor’s relationship with your proposed guardian – will they be able to work effectively together?
- The proposed guardian’s lifestyle – where they live, their family arrangements, financial position, etc;
- What if that guardian cannot or does not want to act, who would you name as a backup?
Appointing a testamentary guardian in your will is just one of the many important considerations when preparing a will. Contact us now on 8213 1000 to discuss further.
