Testamentary Guardianship - providing for the guardianship of children upon death
What is a Testamentary Guardian?
A Testamentary Guardian is appointed in your Will, and can also be appointed via Deed, to “step into your shoes” when you die and you still have a child or children under the age of 18 years.
By stepping into your shoes, the appointed Guardian has a say in all guardianship decisions affecting your child/children that you would have had during your lifetime.
You can only appoint one Testamentary Guardian and their appointment only comes into effect on your death and ends when the child turns 18 years of age, or if they marry under the age of 18 years.
Will they look after my child/children when I die?
It is important to note that Testamentary Guardians do not have full time care (custody) of your child/children – this is different from guardianship.
Ordinarily, if the child’s other parent is still living, they would have the care of the child and they, together with your appointed Guardian, would make guardianship decisions together for the child or children.
A Testamentary Guardian can apply to the Family Court for care of your child/children after you die, even if there is another parent still living.
What are their responsibilities?
The Care of Children Act 2004 lists a guardian’s decisions as follows:-
Where the child or children shall live (country and city, not suburb and street);
Important decisions about upbringing, such as where the child or children will go to school or how they are educated;
Input on religion;
Major health decisions; and
Permission to marry under the age of 18 years.
I’m separated from my child/children’s other parent – how does this affect me appointing a Testamentary Guardian?
It is worthwhile considering appointing a Testamentary Guardian if you have separated from the child or children’s other parent, as this will ensure your views on the child’s upbringing continue to be represented after your death, especially if you are concerned that your family could be cut off from your child/children when you die.
Can the person I appoint decline the appointment?
A Testamentary Guardian cannot decline an appointment, however, they can apply to the Family Court to remove themselves as Guardian.
Therefore, it is important to consider who you will appoint and ensuring your child’s best interests are at the forefront of your decision. The person you appoint must be at least 20 years of age.
Walker Murdoch Law in Invercargill prepares Wills for all clients who instruct them to assist in a transaction free of charge. Please talk to Walker Murdoch Law about the importance of a Will and appointing a guardian for your children. You can give your Will instructions to us by filing out our our easy online Will instruction form - https://www.wmlaw.co.nz/wills