1. The Legislation
Every State and Territory in Australia has legislation which gives each parent the right to appoint a guardian by Will to take effect after his or her death.
In the ACT the relevant legislation is the Testamentary Guardianship Act 1984 (“the Act”). Section 8 of the Act states that:
“Each parent and each guardian of a child may, by Will or codicil, appoint a person to be a guardian of the child or persons to be guardians of the child”
The State and Territory Acts are similar but in no way identical – there are differences and intricacies among the States and Territories.
You should seek advice on which legislation applies to you.
2. Changing Times and Changing Lingo
Times have changed – the State and Territory legislation across the Australian jurisdictions refer to the older concepts of “guardianship” and “custody”. These concepts and terminology were removed from the Family Law Act 1975 in 1996.
Part VII Div 2 of the Family Law Act 1975 introduces the concept of “parental responsibility” and defines the term in Section 61B as meaning “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
“Custody” and “Guardianship” Orders have been replaced with “Parenting Orders” that can govern the long term or day to day care, welfare and development of the child.
3. The interplay between the State and Territory legislation and the Family Law Act 1975
The appointment of a testamentary guardian may be affected by the provisions of the Family Law Act 1975.
Section 51(xxi) of the Australian Constitution empowers the Commonwealth to make laws with respect to marriage and Section (xxii) empowers the Commonwealth to make laws with respect to “divorce and matrimonial causes; and in relation thereto, parental rights and the custody and guardianship of infants”.
In all Australian jurisdictions therefore, the Commonwealth can make laws with respect to guardianship of the child of the marriage. However, without a referral of power from the States, the Commonwealth could not legislate in respect of a child who was not a child of the marriage.
Changing familial values over the years and the increase in more and more people having ex-nuptial children meant that between 1986 and 1990, all Australian States (with the exception of Western Australia) referred their powers with respect to guardianship, custody, maintenance and access in relation to ex-nuptial children to the Commonwealth.
A referral of power to the Commonwealth is not required from the ACT, the Northern Territory and Norfolk Island because s 122 of the Australian Constitution assigns to the Commonwealth plenary power to “make laws for the government” of the Territories.
What this means is that each State and Territory legislation regarding the appointment of testamentary guardians must be read in the context of the Family Law Act 1975. It is said that the Family Law Act 1975 is intended to completely “cover the field” with regard to the parental responsibility of children and notwithstanding that Part VII of the Family Law Act 1975 does not deal with the appointment of testamentary guardians it is intended to comprehensively cover parental responsibility.
4. Appointing a Testamentary Guardian in the ACT
In the ACT, where there is a no surviving parent of the child and no relevant Parenting Order on foot then the appointment of a testamentary guardian allows the appointed guardian to have daily care and control of the child and the rights and responsibilities to make decisions concerning the child.
But, where there is a surviving parent and/or relevant Parenting Order in place, then the appointment of a testamentary guardian might require a joint guardianship arrangement, or might not take effect at all.
As a general rule of thumb therefore, it is good practice for a parent to appoint a testamentary guardian in their Will to take effect:
a. immediately where they are the sole surviving parent or
b. if the other parent has predeceased the appointing parent.
In all cases, the appointment of a testamentary guardian should be done with the knowledge and acceptance that the Family Law Act 1975 may ultimately take priority and precedence. In all cases, a Court will of course have regard to the best interests of the child at the time of their parent’s death.
5. Things you should consider when appointing a Testamentary Guardian
Though not an exhaustive list, the following is a list of some of the matters you should consider when deciding who to appoint as at testamentary guardian for your child or children:
- Do I trust my testamentary guardian to always act in the best interests of my child or children?
- Where does my testamentary guardian live and will my child or children need to relocate after my death?
- Does my testamentary guardian have children of their own and can they assume the responsibility of my child or children?
- What is my testamentary guardians religious and political views and position in respect to disciplining my child?
- What is my testamentary guardian’s view on education?
- Can (and will) my testamentary guardian ensure my child or children maintain ongoing contact with my extended family after my death?
- Is my testamentary guardian likely to survive me?
- What does the mother/father of my child or children think about the testamentary guardian I have appointed? What does my child or children think about them (a question to ask your child or children if they are old enough);
- Should I make some financial provision for my testamentary guardian? A gift in my Will or perhaps just allow for reimbursement of the costs associated with the guardianship of my child or children?