Having a Will in place is important for a variety of reasons. One of the most overlooked reasons for having a Will is that it allows you to appoint a guardian for your children in the event of your death, known as a testamentary guardian. If you do not appoint a guardian in a Will, then depending on your family situation, it may be up to a Family Court to decide.

A Testamentary Guardian

A testamentary guardian does not automatically have the right to have day-to-day care or custody of your children. They will, however, have the responsibility of assisting in making any important decisions in your child’s life, for example: where they will go to school, whether they will have medical treatment and other matters in relation to your child’s general welfare.  Those decisions need to be made together with any other guardian of the child (for example, the surviving parent).

Parents often choose to appoint a guardian only if the child’s other parent has also passed away. However, depending on your circumstances, you may feel more comfortable appointing someone that can step into your shoes and assist your child’s other parent in making decisions, as you would have.

These matters are often difficult to think about, however, it’s important to plan ahead so you can have peace of mind knowing that your children will be taken care of, no matter what happens.  

Choosing who to appoint as a testamentary guardian can be a tough decision.

When making that decision it’s important to always keep your children’s best interests in mind and consider:

  • Whether that person’s values and religious beliefs align with your own;
  • Whether they have the skills to parent your child;
  • Whether they are financially stable;
  • If they have other work or family commitments;
  • Where they live;
  • If there are any issues with their health.

Once you have someone in mind, have a chat with them to see whether this is a role they would be willing to take on. They may also have questions such as, whether your estate would provide for the children financially or whether they would need to take on that responsibility. The person you choose must also be at least 20 years old.

When you’ve made a decision, depending on your family circumstances, consider notifying the whole family and explaining why you have chosen to appoint that person as a guardian. We appreciate that this is not possible in all family situations, but if you are able to avoid surprises regarding these matters in the event of your death, your family will then be able to focus on what is best for your children going forward.

Over time, circumstances may change and the person you choose to appoint as guardian may need to reflect these changes. Nothing is set in stone, and you can always change who you appoint by updating your Will.

For More Information:

If you have any questions or would like to discuss this further, please contact our trusts and estates specialist Andrew Stewart (04) 495 8921.