Testamentary Guardians

“Who will care for your minor children when you are gone?” – This is probably the hardest question to answer as it is an issue that has to be considered carefully in your estate and succession plan. One of the main reasons why people make the effort to prepare or update their Wills is to make sure that their children are taken care of. Parents who have minor children are strongly encouraged to appoint a guardian for their children in their Wills.

What is 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. If a testamentary guardian does take up the role of a primary carer, he or she will generally have the same types of powers, rights and duties of a natural parent. That is, the ability to make important life decisions on the child’s behalf. Additionally, testamentary guardians also need to ensure that the child is adequately housed, clothed, and educated.

The appointment of a testamentary guardian only takes effect on the death of the last surviving parent or legal guardian of the child. The testamentary guardian’s appointment ends when the child attains the age of 18 years.

Who to Appoint as a Testamentary Guardian?
In considering who to appoint as a testamentary guardian, it is important to think about practical matters including (but not limited to):

• The relationship of the proposed guardian to the child
• The testamentary guardian’s own circumstances (including their living arrangements, family structure and financial position), and
• The relationship between the proposed guardian and the executor appointed under your Will.

It is also important to note that the Family Court can overrule any appointment you make in your Will if it considers this to be in the best interests of your child. In addition, the person you have appointed as guardian of your minor child is not obliged to accept that appointment.

If you would like to know more testamentary guardians or if you would like to prepare a Will, Straits Lawyers are now offering an online package for Advance Care Directives and Wills. Simply purchase our package via this link: https://straits-lawyers.square.site/product/will-and-advance-care-directive-package-/13

Alternatively, you can email us at info@straitslawyers.com or call at 08 8410 9069 to arrange an appointment.

Please note that this article does not constitute legal advice.