Appointing a Testamentary Guardian + Legal Advice

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Appointing A Testamentary Guardian + Legal Advice

Written by: Karlene Wightman l Legal Team


When young children are involved, nominating a guardian is an important part of your Estate Planning.  Appointing a guardian, and therefore expressing your wishes in relation to who has the ultimate care of your child/children, gives important direction to not only your family but also the Family Court, in relation to the care of your children.

Your Will can be as simple as nominating the person or persons who you appoint as guardians of your children, or it can also grant your executor certain powers in relation to the guardian.  We recommend that your Will include as much information as possible when it comes to the powers and responsibilities of the guardian, especially for young children.  It is also important to think practically about what potentially might happen if you were to pass away, leaving behind young children if you are a single parent who is not on good terms with the mother or father of those children.  We often find this situation with our clients who are either single or have a blended family and highly recommend that with your Will, you include documents to support your wishes in the form of either Court documents or even a letter explaining why you have made the decision in your Will.  All of these things will be taken into consideration if and when the time comes to appoint a testamentary guardian.

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, so it is a decision that shouldn’t be taken lightly and should be discussed with those that you are entrusting your child/children with if you are no longer here to care for them yourself.

Responsibility + Asking The Hard Legal Questions

Taking on the responsibility of caring for someone else’s children is a big responsibility and for those that already have children will know the heavy weight of the reality of this happening.  This is why it is important to give the executor guidance in relation to how the guardian you choose can spend your children’s inheritance and the lifestyle you want for your children is clearly documented.

When it comes to our clients seeking legal advice regarding testamentary guardians, there are a few things we recommend, including that your Will consider issues such as:

  • Allowing the guardian to move into the principal place of residence with the children and not being responsible for rent, costs of occupation (such as electricity, gas, rates etc.), maintenance and upkeep of the property for as long as the executor allows.  These costs would therefore be paid from your Estate.
  • Provide funds for the benefit of the children before they turn 18 years old (or the age you choose to nominate) to ensure that accommodation, education, sporting, cultural, religious or other day-to-day needs and necessities are met so that their lifestyle, as far as practical, is not affected by your death.

Legal Advice Around Inheritance

The executors may also allow the guardian to use the children’s inheritance for the following:

  • Sell the current home to purchase a larger home, if required
  • Renovating the principal place of residence to meet the needs of the guardian
  • Pay for holidays and holiday accommodation
  • Purchase a new car if a bigger car is required for transportation requirements
  • Pay the guardian for things such as relocation costs, lost wages and the like
  • Pay for additional help such as cleaning, gardening, childcare and the like

These powers are granted to the executor, despite the fact that payment of the above will, in any circumstances diminish the estate before the child or children reach the age of minority.

It is obvious and extremely important to appoint someone that you trust and to review this choice frequently.  It may also be a good idea to take into consideration the appointment of different people as your executors and guardians so that there is a level of separation and the executor can oversee how the child/children’s money is being spent.

Family Court + Any Legal Issues

It is also important to understand, however, that the appointment of a guardian in your Will is not binding – it is simply an expression of your wishes that could ultimately be overturned by the Family Court.  While this can be a somewhat unnerving part of your Estate Planning process, unless there is a dispute within your family about who cares for the children, it is unlikely that the Family Court would get involved.

In the situation where the Family Court did, in fact, get involved, it is also unlikely that they would not follow your wishes unless the person that you appointed is found to be unfit or inappropriate to be appointed as a guardian.  As we mentioned above, it can be helpful to write a letter to the Court that can be read in the event of your death, outlining the reasons why you have chosen the person or persons as guardians.  While this can be seen as “overkill” it is strongly recommended if you have any doubts at all in your mind that if you were to pass away, there would be a struggle outside of your control in regards to someone wanting to obtain guardianship of your children.

Anyone who has a child that is under the age of 18 years old needs to consider the fact that there may be a need for an appointment of a testamentary guardian to look after their child or children should the worst actually happen.  Deciding who should be your child’s testamentary guardian may not be the most comfortable conversation to have or an easy decision to make, but it is something that needs to happen.  Who would you entrust your children with and rest easy knowing that they are properly cared for if you weren’t here to care for them yourself?  Have you included details such as how you wish your child to be raised including where you would like them to go to school and their religious beliefs?  Any adult can be a testamentary guardian, there is no requirement that the person whom you choose must be related but the person that you choose, must be someone that you can be open and honest with and that you trust wholeheartedly.

Canny Legal + Your Guardianship Wishes

We see so often that a lot of people feel that they do not need a Will for the simple reason of “I don’t have anything to give” but if you have children, you should at the very least always have a Will.  This is to ensure that your Will can deal with the guardianship of your child/children and the wishes that you have for them growing up and into the future.  Without it, the Courts simply have no direction and are left to make a decision about who should be appointed as guardian.

Get in touch today to start the conversation about your Will or re-visiting your Will to ensure that you have considered and discussed the appointment of a testamentary guardianship for your children.  The heartache of losing a parent is hard enough to carry without a clear understanding of who is going to take care of them.

We have a team of expert lawyers who will take the time to go over every avenue with you, should you want or need to fully understand your options so that you can make an informed decision on your circumstances to put your mind at ease.


Pictured, Special Counsel Karlene Wightman standing with one hand on her hip wearing a vibrant pink dress

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