Testamentary Guardians

Testamentary Guardians: who will care for your young children when you are gone?

 This is one of the toughest questions asked of young families when making their Wills and it is an issue that should be considered carefully when crafting your estate plan.

At Tetlow Legal we strongly encourage parents to appoint a guardian for children under the age of 18 years in their Wills. By nominating a guardian, you are selecting a person who will be responsible for the care and welfare of your child, as well as for making important lifestyle decisions on his or her behalf.

What is a Testamentary Guardian?

The Testamentary Guardianship Act 1984 (ACT) gives each parent of a child the right to appoint a guardian to care for their minor after their death, as recorded in the parent’s Will.

As the name suggests, this appointment does not come into effect until after your death, and it is often conditional on both parents having died before the child reaches the age of 18 years.

Whilst it is possible to appoint a guardian even though the other parent of the child is still living, the interplay between the surviving parent and the testamentary guardian can be legally complex.

Are they also a Trustee?

A guardian is distinct from the trustee of your estate. A trustee of your estate is the person who manages the assets in your estate on behalf of your beneficiaries. The trustee is often the same person as your executor.

As a guardian is not a trustee, they do not have any control over, or power regarding, the assets within your estate or any funds that you establish for your child under your Will.

While this separation of duties may act as an effective ‘check and balance’ (provided your guardian is not also your executor and trustee!), it is important that the trustee of your estate and your guardian are able to communicate easily and work together so as to act in the best interests of your child.

Is the appointment binding?

Ultimately, the Family Court can overrule any appointment you make in your Will if it considers this to be in the best interests of your child.

In addition, the person you have appointed as guardian of your minor child is not obliged to accept that appointment.

Have these discussions prior to making your Will!

Before you appoint a guardian in your Will, you should discuss the appointment with your partner, as well as the intended guardian, and make sure to consider whether the intended guardian is able to accept the responsibility, is of a suitable age, and that he or she understands your views on how you wish for your child to be raised.

If you would like to find out more information about appointing a guardian in your Will please call Brian Tetlow or Emma Bragg on (02) 6140 3263 or email mail@tetlowlegal.com.au.