October - November 2009
This month, our regular legal advisor, Gayle Patton, looks at the importance of appointing a testamentary guardian – someone you trust to assume responsibility for you children should the worst happen…
Writing a will is something that most people are reluctant to think about it. They may have a superstitious notion that death follows a will or don’t wish to give time to the consideration of organising their affairs on death. However, writing a will isn’t something that should be done only at the last minute or by elderly people. It should be thought about and planned for by all age groups, but particularly by the parents of a young child.
In addition to the obvious advantage of allowing you to provide for the distribution of your assets by means of a clear legal document, rather than leaving it to the State (under the law of intestacy) to decide on your behalf, you can also use the opportunity to appoint someone to act in your place as guardian of your child in the event of your death. This person is called a testamentary guardian.
Guardianship refers to the rights and duties in respect of the upbringing of a child and the decisions that must be made during the child’s lifetime relating to their general development, such as education, religion, medical procedures and general rearing. It also encompasses the duty to maintain and properly care for a child.
A married mother and father are automatically the guardians of their child. If the parents aren’t married, then the natural mother is the sole guardian. An unmarried father of a child can become a guardian if the mother agrees to enter into a statutory declaration appointing him as joint guardian. If a mother refuses to consent, then the father can apply to court to be appointed a joint guardian. This is only a right to apply and success is not guaranteed, but a mother would generally need to have very good reasons for her objections to a father’s appointment as guardian and/or serious concerns about his ability to act appropriately.
For married parents, it’s important to have a testamentary guardian in the event that their worst nightmare occurs and they tragically die at the same time or within a very short period of each other. It those parents have not appointed a testamentary guardian, then there is no-one to formally look after the welfare of their child. In that situation, a court application would be required to have a guardian appointed and this could lead to dispute or acrimony between the deceased parents’ families. It is much better to have your wishes clearly recorded in your will.
If one married parent dies, then the surviving spouse acts as sole guardian of the child. However, there may be good reason why a married parent might wish to appoint someone to act jointly as guardian with their surviving spouse after their death and they are entitled to appoint a testamentary guardian. It should be noted that both parents remain guardians of their child even after a separation or divorce.
For unmarried parents, and particularly mothers where the father is not a joint guardian, it is imperative to appoint a testamentary guardian because the risk of leaving your child without a guardian is much higher. If a mother dies leaving a child and a father who has not been appointed guardian during her lifetime, then that father may apply to court to be appointed after her death. However, the court can order that the father acts jointly with any testamentary guardian appointed by the mother.
An immediate family member or a friend whom your child is comfortable and familiar with is an obvious choice as a testamentary guardian. It should be someone you would trust to bring up your child in a manner consistent with your own morals and values. It is important to remember that the appointment of a testamentary guardian only becomes effective after your death and otherwise gives that person no rights in respect of your child.