Current at 16 January 2024

Having children can change a person's worldview. Formerly unimportant issues may all of a sudden take on a different complexion when you have kids of your own. There's nothing quite like being responsible for another person to overhaul someone's life. All of a sudden, matters such as schooling and kid friendly restaurants seem to take prominence.

Because parents are responsible for a child's wellbeing, issues such as what happens if the parents of a child unexpectedly pass away become a matter that needs to be dealt with. This is irrespective of how uncomfortable the subject may be.

Anyone who has a child under the age of 18 must consider the prospect of appointing a testamentary guardian to look after their child if the worst does happen. Deciding who should be your child's testamentary guardian if you and your partner pass away may prevent additional heartache if the worst case scenario does arise, while ensuring that the child will be properly cared for.

What is a testamentary guardianship?

A testamentary guardian is a person who is responsible for taking care of the child's daily and long term needs if there is no surviving parent and there are no other court orders stating who the child shall live with.

If a testamentary guardian does take up the role of a primary carer, he or she will generally have the same types of powers, rights and duties of a natural parent. That is, the ability to make important life decisions on the child's behalf. Additionally, testamentary guardians also need to ensure that the child is adequately housed, clothed, and educated.

Similar to the types of considerations you would make in the best interests of your child, deciding who is to be your child's testamentary guardian is extremely important. It's essential that you have an in-depth discussion with a potential guardian addressing issues such as

  • how you wish your child to be raised including
  • religious beliefs; and
  • educational considerations.

Having such a discussion will ensure that your child will be properly looked in accordance with the wishes of you and your partner.

Who can be a testamentary guardian?

Any adult can be a testamentary guardian, and there is no requirement that the person must be related. Additionally, more than one testamentary guardian may be appointed. However, disputes may arise in such a circumstance and any surviving parent or any other testamentary guardian can apply to the courts to have the appointment cancelled.

Can my choice of testamentary guardian be overruled?

The courts will always strive to fulfil the wishes and intentions as expressed in your will. However, the courts can also exercise their discretion to appoint another person as the child's guardian if it considers it to be in the child's best interests to do so.

Do testamentary guardians have the power to administer my estate?

No, testamentary guardians do not have the power to administer the estate. The power to administer an estate rests with a trustee who is nominated in the will. However, testamentary guardians may have the ability to retrieve funds from the estate to support the child up until the age of 18.

We're Here to Help

It may be uncomfortable to deal with the subject matter of death, but it is essential that such issues are dealt with, especially if you have kids. Appointing a person to be your child's testamentary guardian is an important undertaking. It is crucial that you talk to a lawyer to ensure that your child is properly cared for in the event of your unexpected passing.

O'Sullivan Davies has practitioners experienced in the area of forward planning.