Advantages and Disadvantages of Appointing a Testamentary Guardian in Your Will

Every State and Territory in Australia has legislation which gives each parent the right to appoint a guardian or guardians by will or deed to act after her or his death. In Victoria, this right is found in s 135 of the Marriage Act 1958 (Vic), which must be read subject to Part VII of the Family Law Act 1975 (Cth) (FLA).

On the death of a parent of a minor child, the other parent is to be guardian of the minor, either alone or jointly with any guardian appointed by the deceased parent.

Where no guardian has been appointed by the deceased parent, or if the guardian or guardians appointed by the deceased parent is or are dead or refuse to act, the court may, if it thinks fit, appoint a guardian to act jointly with the surviving parent of the minor.

If the surviving parent objects to the guardian acting jointly with him or her, or if the guardian considers that the surviving parent is unfit to do so, the guardian may apply to the Court.

The Court may either refuse to make an order (in which case the surviving parent shall remain sole guardian) or make an order that the guardian so appointed shall act with the surviving parent, or that he or she shall be sole guardian of the minor.

Where the Court makes an order that the guardian shall be sole guardian of the minor, the Court may make such order regarding the custody of the minor and the right of access of its mother or father as, having regard to the welfare of the minor, the Court may think fit and may further order that the surviving parent shall pay to the guardian towards the maintenance and education of the minor such weekly or other periodical sums, having regard to the means of the surviving parent, as the Court may consider reasonable.

There are advantages and disadvantages in appointing a testamentary guardian, but on balance it seems better to appoint a guardian than not to, particularly in situations where the children are young. Perhaps appointing a guardian is unnecessary if the children have reached, say, their mid-teens when the will is made.

The testator should not automatically decide that appointing testamentary guardians is the best thing in the circumstances of her or his family. There are some risks that must be taken into account. Guardianship can only be changed by court order. The nominated guardian may feel morally obliged to undertake guardianship in the full sense of parental responsibility, including care and control both socially and financially. The children and the appointed guardian may not get on, and children reaching their teenage years often have strong views which must be respected. Even where the children are very young when the will is made, the guardianship appointment may prove unsatisfactory if the children are teenagers when the will comes into force.

In favour of the appointment of a guardian is the fact that without the consent of a guardian the child may have difficulty with certain activities, such as obtaining medical treatment, enrolling in school or applying for a passport.

Another factor in favour of appointing a guardian arises where the testator is a migrant who does not want her or his children to return to relatives overseas.

It is important to understand that State and Territory legislation provides for the appointment of testamentary guardians, while the FLA provides for the rights and duties of guardians after appointment. Where the FLA applies, State and Territory legislation is subject to it.

In general, State and Territory legislation provides that testamentary guardians are to act jointly with the surviving parent where there is one. However, in the ACT, Qld and WA, joint guardianship does not automatically occur if a testamentary guardian is appointed while another guardianship exists.

In the absence of clear judicial or legislative authority on the issue, a prudent approach to appointing testamentary guardians is suggested, particularly in Victoria.

The testator should communicate with the other parent of the children, even if the parents are estranged. Usually the testator wishes to appoint a testamentary guardian to act only if there is no surviving parent or other guardian, or on the death or incapacity of the other guardian. It is particularly important that such wills be reviewed frequently to make sure that, as the children become older, the guardianship provisions in the will are modified or deleted as appropriate.

This article is intended for general information purposes only and does not constitute legal advice. If you have any questions or require advice regarding guardianship, our team at Roger O’Halloran & Co is here to assist you with professional legal guidance tailored to your circumstances.