Parents making a Will (either for the first time or reviewing an existing Will) are often concerned about the appointment of a person or persons to act as their child or children’s guardian in the event of their death. The appointment of a suitable guardian or guardians is an important decision for Will makers.
A sound appointment may help avoid uncertainty or family disputes about who is responsible for a child or children after their parents have died.
That being said it is important that Will makers understand that the Courts have an overriding discretion to remove and or appoint a different guardian- parent or guardian of a child where the Court considers it to be in the child’s best interests.
The Law in Queensland
The law in Queensland states that a parent or guardian of a child may, by their Will, appoint a person as a guradian of the child. The guardian can be appointed to act in the event of one or both parents.
However, if there is a surviving parent or a child has one or more other guardians appointed, the law requires a Testamentary Guardian (that is a guardian appointed by a Will) to discharge his or her rights and responsibilities and exercise his or her powers, jointly with the other guardian or guardians.
A guardian appointed under a Will has all the powers, rights and responsibilities, for making decisions about the long-term care, welfare and development of the child. This includes such matters as a child’s education and religious upbringing.
Difference between long-term care welfare and development and child’s living arrangements and daily care
It is important to note that there is a difference between the powers, rights and responsibilities for making decisions about the long-term care, welfare and development of the child and the responsibility for a child’s living arrangements and daily care.
The authority to govern a child’s living arrangements and daily care can only be exercised by a guardian appointed under a Will in circumstances where the child has no surviving parent and no other person has obtained an Order from a Court granting them authority (a) for the child’s living arrangements and daily care.
In addition, the appointment of a guardian by a Will is subject to any (b) Orders of the Family Court of Australia.
The Family Court of Australia has the ability to determine who will have responsibility for the daily care, welfare and development of a child based on (c) what it perceives to be in the best interest of the child.
The Supreme Court of Queensland also has the ability to hear an application on all matters relating to a deceased estate in Queensland including matters (e) involving the appointment and removal of a Testamentary Guardian.
This means that surviving family members could apply to the Courts to re- move a person appointed as Guardian by a Will and have a child live with them, provided it is in the child’s best interests.
What to consider when appointing a Testamentary Guardian
When deciding on whom to appoint as Testamentary Guardian, parents should consider: –
(a) The relationship between the proposed Testamentary Guardian and the child;
(b)The relationship between the proposed Testamentary Guardian and the proposed Executors and Trustees of the Will;
(c) The location of the proposed Testamentary Guardian
(d) The age and fitness to act of the proposed Testamentary Guardian; and
(e) The impact the appointment might have on the Testamentary Guardian’s income, finances and lifestyle and how the Will might be worded to provide assistance to the Guardian.
If you wish to discuss the matters raised in this article or are interested in making a Will or revising your old Will to ensure that a Testamentary Guardi-an is appointed for your child or chil-an is appointed for your child or chil-
