29/09/2016

Choosing the person who will take care of your children should you pass away before they are 18 is, for most, one of the most important decisions you will ever have to make. Alarmingly, many people don't realise that having a spoken arrangement with your trusted person is not enough. We set out who gets the house and the car and the superannuation, but what you can also do in your Will is appoint a testamentary guardian.

A testamentary guardian appointed for a child takes on the responsibility for that child and holds the right to make decisions regarding the welfare of that child – including in terms of their wellbeing, healthcare, education and religion. Whilst it is possible to appoint more than one, it could potentially open the door to conflict between those appointed, and as such seems cleaner to appoint a sole guardian in your Will, and perhaps then a substitute.

The way it works currently, in New South Wales in particular, is that unless a testamentary guardian is appointed then any person ‘with sufficient interest’ can apply for guardianship of your children. If there is a conflict or more than one application then the Family Court of Australia will make a determination as to who they think is best – it is important to consider what they would look at when making the determination and that this may not always align with what you would have done.

The key principle is ‘best interests of the child’. In all jurisdictions around Australia the legislation operates on the basis that what is in the child’s best interest is the paramount consideration and ultimately will lead the Courts to a decision. A request by the deceased parent/s in their Will is likely to carry substantial material weight when their Honours are making a decision relating to the child. This of course is the general position and may not apply in all circumstances, including where the deceased parent’s parental rights had been removed.

Appointing a testamentary guardian in your Will is only in the form of a request. You cannot require the appointed person to accept the role; in the sense that it needs to be accepted by the person appointed in order to be put into effect. Once this has happened, if another person sought guardianship they would need to show why they are a more appropriate or fit person to assume the role of guardian. Once again, the Court makes the final decision, and it will take into consideration the wishes of the parent in a large way.

Appointing a testamentary guardian can help to ensure that there aren’t disputes between, for example, competing sets of grandparents. Another instance may be where different members of the close-knit extended family of the child is quite close-knit and many people think they ought to be responsible for the child. Often these ‘conflicts’ as we call them occur in good faith, and with genuine intentions at the heart of it all, but will inevitably lead to anguish.

The legislation around the country is similar (though not identical) and generally must be read with the Family Law Act 1975 in mind. Section 61C of the Family Law Act 1975 dictates that parents of a child hold parental responsibility for that child. This would indicate that where only one parent had died the other would (generally) assume full parental responsibility for their child.

However, it seems that other state-based legislation indicates there is a role to play for the appointed guardian in situations where the deceased parent intended their wish to be fulfilled even where the other parent survived. This however requires much more in-depth consideration. This involves a level of complexity that is inappropriate for this article but can be kept in mind for future reference.

Although a surviving parent will (generally) have the right to care for their child, another ‘interested’ person is able to make an application for guardianship and the decision is then left to the Family Court as to who, ultimately, takes responsibility. It seems that the case law in this area indicates that the non-parent will have to show that it is not in the best interests of the child for their guardian to be their surviving parent, and the circumstances would need to be extreme.

It is essential that, if you have minor children, or even if you don’t, you consider what you would like to occur in the unfortunate event of your passing whilst your children are under 18. It is always better to have your wishes made clear in your estate planning documents well before an issue arises.

For further information, please contact Townsends Business & Corporate Lawyers on (02) 8296 6222.