Who is the best person to look after my children if I can't?

Written by: Sayuree Ram
Jul 18 2023

Considering the role of a Testamentary Guardian.

There are many tough decisions to make when writing a will – who is going to look after your children is one of the hardest.

A testamentary guardian is a person appointed by a parent in a will, or by deed, to care for children under the age of 18. It may be obvious who the right person is to take on this important role, but there are also many complexities and emotions involved which can make it a difficult decision.  

The process can be made easier if the role of the testamentary guardian and what is expected of them is better understood.

An important role

Only one testamentary guardian can be appointed, and they must be at least 20 years old.

Testamentary guardians are responsible for making significant decisions in a child’s life until they are 18 years old, or, if the child is younger than 18 years and they get married, enter into a civil union or de facto partnership.

The decisions the testamentary guardian can make include where the child lives, where they go to school, and decisions regarding health and medical treatment.

A testamentary guardian does not automatically have custody or day-to-day care of the child. If the testamentary guardian would like to have custody of the child, they can apply to the Family Court for a Parenting Order. 

Joint guardianship

A parent may appoint a testamentary guardian under their will to act alongside the surviving parent, or the appointment can also take effect following the death of both parents.

For parents who are divorced or separated, appointing a testamentary guardian to act jointly with the surviving parent can help to provide a way of ensuring the deceased parent’s family are involved in the upbringing of the child following their death.

Who to appoint

Deciding who to appoint as testamentary guardian is a personal choice and can be a difficult decision. It is important to keep in mind your family’s circumstances and your children’s best interests. You should also consider:

  • Whether the person is willing and has the skills to act as testamentary guardian
  • The relationship the person has with your children
  • Where the person lives
  • Their age and any health concerns
  • Their financial and employment commitments

A person does not have to consent to being appointed as a testamentary guardian and, once appointed, they cannot decline the appointment. This may come as a surprise given the responsibility and ongoing obligations imposed on the guardian. Therefore, before appointing a person as testamentary guardian of your children, make sure to discuss this with them and ensure they are aware of your expectations and comfortable with being appointed before proceeding.       

Haigh Lyon’s trust and estate planning team can provide further advice and guidance on appointing a testamentary guardian under your will. For more information contact Sayuree Ram on 09 985 2526 or @email.