Have you ever thought about who would look after your children
if you were to die before they turn 18? Perhaps you've arranged
for your parents to take care of them, or maybe one of your
brothers or sisters? However, unless you have appointed a
testamentary guardian, you can't guarantee that your children
will be placed in the care of the person you choose.
What is a testamentary guardian?
A testamentary guardian is an adult who is appointed in a
parent's Will to be responsible for taking daily and long-term
care of that parent's child until the age of 18, including
issues such as their education and involvement in extra-curricular
Many people mistakenly believe that their parents or siblings
will automatically be responsible for the care of their minor
children upon their death. However, unless a testamentary guardian
is appointed under your Will, any person with 'sufficient
interest' can apply for guardianship. If this occurs, the
Family Court of Australia has the power to appoint a legal guardian
based on what they believe is in the best interests of your child
– not necessarily who you would choose.
The last thing you want during what is already a stressful time
for your child, is for them to be exposed to family members
fighting over who is best suited to be appointed as guardian.
Similarly, you don't want the parenting responsibility to be
given to a person that you believe won't be a good guardian to
your child. Accordingly, it is important to nominate a testamentary
guardian whilst you are living, so you can have peace of mind
knowing that your child will cared for by the right person if the
How do you choose the right person?
Choosing the right person to raise your child is one of the most
challenging decisions you will ever have to make as a parent. Some
key factors you need to consider before making the decision
The proposed guardian's relationship with your child
The relationship and level of cooperation between your chosen
executors and trustees of your Will and the proposed guardian
Where your proposed guardian lives and how this will affect
your child's lifestyle
The age and ability of the proposed guardian to act as a parent
for your child
If your proposed guardian can financially support your
If the proposed guardian wants to be the guardian of your
Whether the proposed guardian has a similar parenting style to
To avoid any misunderstandings or conflict, you and your
child's other parent should nominate the same person as
guardian of your child. You also need to make sure that you let
your proposed guardian know before nominating them in your Will, to
ensure that they understand your expectations and are willing to
accept the responsibility.
What happens if you and the other parent do not agree?
It is important to note that parental responsibility for
children under the age of 18 will automatically be conferred onto
the surviving parent, even if you've nominated an alternate
guardian in your Will. However, if the person you have appointed as
testamentary guardian wishes to care for your child,
notwithstanding the survival of the other parent, then they need to
apply to the Family Court of Australia which will decide who is
best suited to assume the responsibility.
Can a guardian be removed?
Upon Application to the Court, a testamentary guardian may be
removed from his or her role as guardian, if the Court decides that
it's in the best interests of the child. The Court has the
power to then appoint another guardian in place of the original
Does my nominated testamentary guardian have the same role as
the trustee of my estate?
The testamentary guardian is responsible for making decisions
about the long-term care, welfare and development of your child,
and has the role of administering your estate in accordance with
your Will. Unless otherwise stated, they aren't entitled to any
part of your estate but can however, apply to the trustee of your
estate for funds in relation to the maintenance, education or
advancement of your child.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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