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What is testamentary guardianship?

Testamentary guardianship is appointing someone who will care for any of your children as well as make crucial decisions about their welfare, education and maintenance until the age of 18. For any parent it is essential to consider who will care for your children should you pass. A parent has the power to appoint a testamentary guardian by Will or deed under the Guardianship of Infants Act 1916 (NSW).

What if the other parent survives me?

There is ambiguity in the law as to what happens if the other parent survives you. In NSW if a guardian is appointed and they accept their role, they are appointed jointly with the surviving parent.

With the appointment there are numerous scenarios that can arise:

  1. The Guardian and the other parent agree to act jointly;
  2. The other parent objects the guardianship and becomes a sole parent for the children;
  3. The other parent objects to the appointment of the guardian and the guardian applies to the Court for joint/sole guardianship; or
  4. The guardian considers the other parent unfit and applies to the Court for sole guardianship.

Parent Objecting to the Guardian

If the other parent objects to the guardian’s appointment but the guardian wishes to have testamentary guardianship they must apply to the Court. There is a conflict between state and federal laws in this aspect as under the Family Law Act 1975 (Cth) each parent has parental responsibility. Due to the conflict between the Commonwealth law and State laws there is a possibility in this instance the appointment may have little effect.

There are occasions where the Court will consider it appropriate for the guardian to act jointly or solely in the care for your children and the conflict should not deter them from making an application to the Court.

Guardian considers the other parent unfit

Another occasion the guardian can apply to the Court is when they believe the other parent is unfit. This can include circumstances where you may have already received sole parental responsibility. On these occasions the guardian can apply to the Court to be the sole guardian of the children.

Applications to the Court

In any application to the Court the Court does have the power to remove a guardian, including a parent and replace them with another guardian. The Court in making any decisions when appointing a guardian will consider what is in the best interest of the child.

If you wish to appoint someone as a testamentary guardian of your children, or need advice on how to enforce an appointment of testamentary guardianship please call Gowland Legal on (02) 9569 3000 to receive quality advice on your individual circumstances.