What is a testamentary guardian, and why do I need one for my children?
A testamentary guardian is an adult nominated in a parent’s Will to care for their minor children in case both parents die before the children turn 18.
When we have young children, we understand that if one parent dies, the other parent will automatically retain parental responsibility. But in case both parents die prematurely, each needs to nominate in their Will an alternate testamentary guardian for their minor children. Otherwise your children may end up in a home you wouldn’t choose for them, being parented in a way that’s not in accordance with your values.
Did you know that the Family Court can receive an application from any sufficiently-interested person for a parenting order to raise your children? Appointing a guardian in your Will may help avoid disputes, but the Family Court always retains an overriding power to appoint or remove a guardian when it considers this to be in your child’s best interests.
So how do you find the right person to act as guardian for your young kids?
The first thing you need to do is list the qualities that most matter to you in the person who will be raising your children in your absence, such as parenting style, moral values (such as kindness and honesty), practicalities (do they have a stable home and job where you want them to live), beliefs and spiritual elements (whether you want your children raised in a particular faith).
- Is the person willing and physically able to carry out the role? For instance, are they considering having more children of their own?
- What kind of relationship does this person already have with your children? You want someone your children feel comfortable with and respect.
- Where does the person live? You may want to avoid your children having to relocate and leave their friends from their current school.
- Are they financially stable and able to make prudent decisions? How old are they? You wouldn’t want someone too old to cope with the demands of your boisterous kids.
Don’t be tempted to rely on a DIY Will, because it is very easy to make serious mistakes with them, and any mistakes won’t become known until after you’re dead and it’s too late to fix them. The legal costs and emotional stress for your family will be far higher than if you just engaged a specialist lawyer to do it properly in the first place.
And don’t make the mistake of assuming that your sister or best friend would automatically receive custody of your child. The Family Court decides who should become legal guardian based on the perceived best interests of your child. This may not necessarily be the person who you would choose. You should specifically name a guardian in your Will, and thus inform the Court (after your death) of this expression of confidence in that person.
Remember that your children will be attempting to cope with the loss of both parents. A disagreement between family members who wish to take care of the child can only compound the stress and anxiety for everyone.
You and your partner should each name the same person as the guardian of your child to avoid conflicts. It is generally best not to name both members of a couple as guardian, for fear of a further split-up of the kids in the event of the divorce of that couple.
Expert Advice for Wills and Estate Planning in Adelaide
Deciding who will raise your child in your absence is one of the toughest decisions you’ll face as a parent.
Once you have made your decision, you should take the time to document your hopes for raising your child in a letter and stored alongside your Will. You might want to cover issues like education, travel and the values that you think are important. Reread the letter every year or two and update it if necessary.
You will need to update your Will and change your chosen guardian as circumstances change.
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