What is a testamentary guardian and what they can/can’t do

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.

It is suggested that you contact your lawyer to discuss your options in ensuring the best outcome for your children’s wellbeing.