What is a Testamentary Guardian?
There are a number of important factors for parents to consider when deciding who they would like to be their child’s guardian.
A person appointed by a parent’s Will to be responsible for making long-term care, welfare, and development decisions for their child. When both parents are deceased, the Testamentary Guardian will also be responsible for the child’s daily care and living conditions.
Who can appointment a Testamentary Guardian?
Any parent of a child that is under the age of 18 can make the appointment.
How can they appoint a Testamentary Guardian?
A parent can only make the appointment through their Will.
Choosing a Testamentary Guardian
There are a number of common factors for parents to consider –
- Trust and understanding – It is important to choose someone that you trust and who understands how you want your child to be raised.
- Location – It is important to choose someone who lives in Queensland and intends to continue living there (if you do not want your child to relocate to live with the Testamentary Guardian).
- Age – It is important to choose someone close to your age, if you would like your child to be exposed to a person with a similar energy, perspective, and values.
- Financial Stability – It is important to choose someone who is financially stable and able to make good financial decisions.
- Relationship with child – It is important to choose someone that your child knows and respects, so any transition will be as smooth as possible.
- Willing and able – It is important to choose someone who not only understands the role of a Testamentary Guardian, but who is also willing and mentally/physically able to carry out that role.
- Relationship with executor – It is important to choose someone who has a good relationship with the executor of your Will to ensure they will work together to carry out their duties for the benefit of your child.
Can there be more than one Testamentary Guardian appointed?
A parent may elect to appoint more than one Testamentary Guardian. However, when there is more than one Testamentary Guardian, they must agree on their decisions for the child. In this situation, there is a risk that disagreements could occur which may negatively affect your child.
What are the advantages of appointing a Testamentary Guardian?
Advantages of appointing a Testamentary Guardian include:
- having the peace of mind knowing that someone you trust is protecting your child’s future;
- having the appointment form part of your financial planning in preparation if the unexpected happens;
- having the opportunity to choose a person who can legally assist your child to obtain a passport, a loan, a bank account, or enter certain types of employment; and
- having a person responsible for making decisions about your child’s education, religion, and medical treatment.
When should I change my appointment of Testamentary Guardian?
You will need to update your Will if:
- The chosen Testamentary Guardian changes his/her mind about taking on the role; and/or
- your child or proposed Executor develops a negative relationship with Testamentary Guardian.
What happens if a Testamentary Guardian is not appointed?
Where one parent survives, he/she will usually take responsibility for making daily and long-term decisions for the child, but where no parents survive and no Testamentary Guardian has been appointed, then the court will determine who is best to look after the child.
This can be a lengthy and distressing process at a time where the child is already experiencing emotional turmoil and grief. A disagreement between family members who wish to take care of the child can only compound the child’s anxiety. Even after the court chooses a person, conflict may still exist because of continuing family disagreement or a breakdown of the family relationship with the child.
Who will make major financial decisions on behalf of the child?
If no parent survives, a Testamentary Guardian will make financial decisions in consultation with the Executor who will take steps to provide the necessary advance from funds held on behalf of the child.
Practical considerations
When choosing a Testamentary Guardian, you are in control. Talk to the person you wish to appoint so that you feel comfortable and confident with your choice.
It is important to plan for financial resources to be in place to look after your child, especially if your child suffers from an ongoing health problem.
A child is meant to have a happy childhood, and as responsible parents you can make a plan to ensure this if the unexpected happens, because without a plan –
YOU ARE RISKING THE QUALITY OF YOUR CHILD’S FUTURE.
We can assist you with putting together a plan for the future care of your child if the unexpected happens.
To enquire about your Will and how to protect your child’s future, contact Loan Chow on (07) 3232 5719 or loanc@whd.com.au.
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