Appointing a Testamentary Guardian in your will means you have control over who makes decisions on your behalf if you are no longer able to look after your children.
Like every parent I know, my kids are my world.
I was lucky enough to get five of them, in two batches. In 1998, my daughter Lily was born two weeks shy of my 21st birthday - a nine-pound four-ounce bundle of perfection.
Oliver arrived two years later and I kept them both under my wing for as long as possible.
In the thick of this parenting thing I tried my hardest to raise them with love, care and guidance to be happy contributors.
I was in the thick of this parenting thing throughout my 20s. Feeling indstructible (somehow, we all survived).
Lily and Oliver have flown the nest and I now have three more kids to add to the brood. I’m back in the thick of parenting in my 40's and not feel quite as indstructible as I once did.
Things go wrong - I've experienced it in my own life and in the lives of clients I’ve supported during my legal career. As we go around the sun more and more and more times we start to wonder, how many near misses do we get? Cats are supposed to have nine lives, but what about me?
Who will look after my kids if I die?
As parents, we start out as our children’s first and most important carers and mentors but we don’t do it alone. All the grandparents, aunts and uncles, teachers, coaches, childcare workers and friends in their lives help shape them with their time, kindness and guidance.
We build communities around our children, and appointing a testamentary guardian in your will is another important part of this. It’s a way to continue to protect your children and look after their best interests, even in the event of your death: to be their Guardian Angel.
It’s something I’m so glad I’ve done and it’s something I love supporting other families to do. And the best thing is, once that’s all sorted, we can get back to the fun stuff - spending time with these little humans who are our whole worlds.
Here is some information I found useful when I asked myself the question what would happen to my kids if I die;
What (or who) is a testamentary guardian?
A testamentary guardian is someone you can appoint in your will if you have kids who are under 18 years of age. The testamentary guardian will be responsible for making sure your children are cared for in the event of your death.
What if I want to appoint more than one person?
No problem. You can appoint more than one testamentary guardian. You can also appoint a testamentary guardian(s) to be your child’s guardian in conjunction with the other parent or their sole guardian if there is no surviving parent.
What are the testamentary guardian’s responsibilities?
Your testamentary guardian does not necessarily have to take on day to day responsibility for your kids to ensure that your kids are well cared for. For example, your testamentary guardian may put in place the best living arrangements for your kids and guide your executors to use funds from your estate to support them in line with your parenting philosophy and goals.
What’s the first step?
You should have a chat with the people you have chosen to make sure they are happy to take on this role. It's also a good time to have a deep and meaningful discussion about your parenting philosophy and your kids’ needs.
What if the other parent is still alive?
If the other parent is still alive, the testamentary guardian will share their obligations with the surviving parent and the kids’ living arrangements will depend on the circumstances.
What if there is a dispute?
If there’s any dispute after you die, your testamentary guardian, other family members or a surviving parent can enter into negotiations to put appropriate parenting arrangements in place for your kids.
Ultimately, the court can make parenting orders which agree or disagree with the terms of your will after taking into account the kids’ best interests.
Be your kids’ Guardian Angel
The appointment of a testamentary guardian by a deceased parent is a formal and meaningful direction for other family members, the community and the court about your vision for your kids’ future.
When we do estate planning together we spend as long as you need to feel comfortable about who you nominate as your child's testamentary guardian, so you can:
- You take hold of the wheel. Your clear instructions will help avoid some of the floundering which occurs amongst the players in the room in the event of your unexpected death.
- You shout it from the rooftops. You have an opportunity to clearly state to the people close to you what you want for your kids in the event of your death.
- You hand over the baton. You empower your chosen testamentary guardian to take a special interest in your kids’ wellbeing, even if it works out that the kids don’t live with them.
- You arm them. You give your testamentary guardian permission to apply to the Court for parenting orders, if required.
- You draw a map. You may wish to set out some decision-making principles to empower your testamentary guardian in their role after your death.