Australia: Appointing a guardian if you pass away before your child turns 18

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 activities.

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 worst happens.

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 include:

  • 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 child
  • If the proposed guardian wants to be the guardian of your child
  • Whether the proposed guardian has a similar parenting style to you.

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 guardian.

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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