Generally, a mother and father are referred to as the natural guardians of their child. Section 26 of the Care of Children Act 2004 provides that a testamentary guardian is a guardian appointed by deed or by will by a parent of a child. This article discusses further what a testamentary guardian is and what their role allows them to do together with what they are prohibited from doing.
A testamentary guardian’s role commences on the death of the parent who makes the appointment. They essentially assume part of the role as a parent for the child and must be at least 20 years old when the appointing parent dies. If the deceased parent was a sole guardian, the testamentary guardian will be the child’s sole guardian. If there is a surviving parent/guardian, the testamentary guardian will be joint guardian with that surviving parent. This can ensure that the deceased parent’s family stays involved with the child.
A testamentary guardian does not need to consent to their appointment, however, if they do not wish to be a testamentary guardian, they would have to apply for a court order to be removed. Accordingly, it is important to discuss your wishes with the person you intend to appoint.
A testamentary guardian assists with making significant decisions for a child’s wellbeing and upbringing such as:
- when the child should go to school,
- religious teachings,
- where they should live,
- permission for marriage under 18,
- medical treatment for the child, and
- any changes to the child’s name.
Where there is more than one guardian, all guardians must make unanimous decisions about the child. Where there is a conflict, the Family Court can make orders to resolve a dispute.
What can’t a testamentary guardian do? A testamentary guardian does not automatically gain the right to provide day-to-day care (or have custody) for the child by virtue of their appointment. They must seek a parenting order giving them the right to day-to-day care.
A testamentary guardian’s rights and responsibilities end when the subject child turns 18 years old, marries, enters a civil union or is in a de facto relationship.
It is important to prepare a will and include provision for the appointment of a testamentary guardian for young children, particularly in the event that both parents die, otherwise the court appoints a guardian instead. Prior to an appointment, the appointed testamentary guardian should be consulted with first and a review undertaken each year to ensure they are still suitable for the role.