Once you become a parent, your child is your first priority.  If you pass away, you want to safeguard their future by making sure they’ll be cared for.

As part of that process, it is recommended that you have a professionally drafted Will made and appoint a guardian to look after them (if they’re under the age of 18).

In this article, we’ll discuss the things you should consider when appointing a testamentary guardian for your child, what happens to your child if you pass away, and how you can provide financially for their wellbeing.

What is a Testamentary Guardian in Queensland?

A testamentary guardian is someone that you appoint under your Will to take parental responsibility for your child.  Testamentary guardianship only takes effect once you die and if your child is under the age of 18 years. 

Broadly, parental responsibility means the powers, rights and responsibilities for the care, development and welfare of a child that a parent would usually have. These responsibilities include, for example, decisions about healthcare, education and religion.

The laws that regulate the appointment of testamentary guardians vary from state to state. In Queensland, the Succession Act 1981 (Qld) provides for the testamentary appointment of a guardian of children in a Will. If the appointment comes into effect, the Family Law Act 1975 (Cth) regulates the rights and duties of the guardian. 

How Can I Appoint a Testamentary Guardian?

Upon the death of a parent, if there is not a Will, the surviving parent will generally have parental responsibility for a minor child under 18 years of age.

Under their Will, a parent can appoint a testamentary guardian of their minor child to take effect upon their death. In Queensland, the appointment of a testamentary guardian will only take effect on the death of the last surviving parent, unless it is intended that the appointment take effect on the Will-maker’s death, despite there being a surviving parent.

There can be instances when appointing a surviving parent is not a suitable option and, in these circumstances, legal advice specific to your situation should be sought at the time of appointing a testamentary guardian under your Will. 

Any existing court orders in relation to parental responsibility for your child should be considered when appointing a testamentary guardian under your Will.

Who Should I Appoint as a Guardian?

It is important to ensure that you appoint a guardian who will make decisions in the best interests of your child.

Under your Will, a successor guardian can be appointed to act if your first-appointed guardian is unwilling or unable to accept the appointment at the time of your death. 

Joint guardians can be appointed; however, this is generally not recommended, and it would be critical to ensure that joint guardians would be able to agree on their decisions in relation to your child.

What Is the Process If a Guardian Appointment Takes Effect?

The guardian appointment made under your Will is not a binding appointment. 

After your death, if the appointed guardian is willing and able to accept the appointment made under your Will, an application is required to be made for a court order approving the appointment. The court will consider the circumstances applicable at that time and, if acceptable, issue a court order approving the appointment.

What If the Appointment Is Disputed?

However, if a challenge is made to the guardian appointment made in your Will after your death (for example, by another family member), the Court will decide who will be appointed as the guardian of your child. 

The Court will make its decision in the best interests of your child.  This involves considering all relevant circumstances at that time, including the age of the child, the wishes of the child, their level of schooling, and their social networks. The fact that you have appointed someone in your Will as your preferred guardian is relevant information that will be considered by the Court, but the Court will ultimately make a decision that it feels serves your child best.

Making Your Wishes Known

If you have specific wishes about your child’s upbringing in the event of your death, documenting them is a good idea. These wishes can include matters such as a preferred religion, education, family relationships with grandparents and extended family members, and healthcare matters.

Your child’s guardian is not required to follow your wishes, but having a written record can help them understand what your preferences are.

Financial Provision for Your Child

Suitable options for financial provision for the maintenance, education and advancement of your minor child if you pass away should be discussed with your solicitor when you make your Will, as the options available will depend on your individual circumstances.

Next Steps

If possible, talk to your child’s other parent about guardianship of your child if you pass away, and discuss who may be a suitable guardian. Afterwards, speak with your proposed guardian to make sure they’re prepared to accept the role if necessary.

To document your wishes about guardianship of your minor child or children in your Will, contact us to book an appointment with an experienced estate planning solicitor. The team at Bell Legal Group will work with you to make sure that your wishes for your child or children will be known after your death.

 

The content of this page is for information only. The content does not constitute legal advice and should not be relied upon as such. You should obtain advice that is specific to your circumstances before taking any action.

 

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