What is a testamentary guardian?
The parent of a minor may, through their will, appoint any person to be responsible for the long term care, advancement and education of their minor children (s14 (1), (2) Guardianship of Infants Act 1916 (NSW)). This person is known as the testamentary guardian. However, this appointment is not binding.
Usually, a testamentary guardian is appointed in the event that the last surviving parent dies, thus endowing the guardian with the responsibilities of parenthood towards your child.
What to consider when appointing a testamentary guardian
- The proposed testamentary guardian’s relationship with the child.
- Cooperation between your chosen executors and trustees of your Will and the proposed testamentary guardian.
- Where does the testamentary guardian live and where would you like your child to live?
- The proposed testamentary guardian’s age and fitness to act; and
- Costs that might be imposed on the Testamentary Guardian.
What happens if there is a surviving parent?
Section 61C of the Family Law Act 1975 (Cth) confers on the surviving parent parental responsibility for children under the age of 18 years, unless displaced by a Court order. As a result, the powers of an appointed guardian pursuant to the Guardianship of Infants Act 1916 (NSW) are curtailed to the extent of any inconsistency with the Family Law Act 1975.
This means that, although the net effect of the intermingling of the Guardianship of Infants Act and the Family Law Act is not certain, it is most probable that when there is a surviving parent, the appointment of a separate guardian although possible in theory, will have little practical effect.
If a person other than the surviving parent wants to look after the children, he or she can approach the Court to decide who should have parental responsibility – the surviving parent, the testamentary guardian, or someone else. If you have named a testamentary guardian in your will, the Court may take this into account when making orders. However, the Court has the power to appoint a different guardian if it thinks this is in the best interests of the child.
Can a guardian be removed?
Upon application, where the Court considers it is acting in furtherance of the welfare of the child, the Court may remove from his or her office any testamentary guardian and may also appoint another guardian in place of the guardian so removed (s 18 Guardianship of Infants Act 1916 (NSW)).
Guardian’s relationship to the Trustee of your estate
It is not the role of the testamentary guardian to administer your estate. This is the role of your executor and trustee. However, the guardian may apply to the trustee for funds in relation to the maintenance, education or advancement of your child.
When does guardianship end?
The guardianship will end when the child attains the age of 18 years.
It is important that guardianship provisions in wills are reviewed regularly to ensure that as the children become older, the appointment may be reassessed for its appropriateness.
For more information about Wills and Estates Law, please contact us by placing in inquiry on our website, or call 1800 800 888.