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The appointment of a testamentary guardian and family law

A  testamentary guardian is a person appointed under your will to be the guardian of your minor children in the event of your death.

We often see clients after they have separated from the other parent of their children. Because you may hold the other parent in a less than favourable light, the question often arises – who will look after my kids if I am dead? You can appoint a Testamentary Guardian but what happens if the other parent is still alive? Does it make a difference if there are Family Court Orders in place?

The starting point under the Family Law Act 1975 is that each parent has parental responsibility for their child. That responsibility is ongoing. However, it may be altered by a court order. Thus when parents separate and orders are made in relation to the ongoing parental responsibility, one parent may be responsible for providing day to day care and the child may live with them while both parents may share the long term parental responsibility.

What happens when the parent responsible for where the child lives dies? If the court orders do not make provision for living arrangements of children following the death of the parent with whom the children live, the surviving parent does not automatically assume responsibility to provide residence. It may require further orders and it may give rise to contest between the surviving parent and other family members or interested parties such as step-parents.

What if the deceased parent had made their new spouse (a step-parent) or some other person a testamentary guardian? The testamentary guardian is responsible for the long term responsibility but not the daily care responsibility of the children. What does this mean in practice? It means that the testamentary guardian is responsible for financial matters and other decisions that affect the long term care and welfare of the child. This includes the right to start court action about where the child might live.

Summary  After a couple separate:

• If there is no Court Order – both parents share equal parental responsibility. If one parent appoints another person as a Testamentary Guardian, that Guardian will share equal parental responsibility for long term care but does not have daily care and control over the child with the surviving parent. The surviving parent will have sole parental responsibility over daily care and control of the child which includes where the child will live.

• If there is a Court Order (and the order does not make provision for the death of a parent) – the deceased parent (with whom the child was living) can appoint a Testamentary Guardian who assumes the parental responsibility for the long term care of the child but does not have daily care and control over the child. The surviving parent, Testamentary Guardian or other interested third parties may need to seek an order from the Family or Federal Circuit Courts to determine where the child will live.

Stephen Bourke is a director in the boutique firm, Certus Law, specialising in superannuation, trusts and estate planning. He also consults to other practitioners through the consulting practice, SuperSplitting. Level 5, 28 University Avenue T: 6268 9090www.certuslaw.com.au
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