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Testamentary guardian – thinking of the children

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I have young children, who will look after them if I die?  A testamentary guardian may be the answer.

We often get asked this question, and a testamentary guardian may be the answer.

Usually – and subject to any Family Court orders – it will be the surviving parent who will have full authority over the children.

However, it can sometimes happen that a child is left orphaned when both parents pass away at the same time.

In such cases, the law allows a parent to appoint a person in their will to be their children’s guardian, often known as a “testamentary guardian”.  That person will have parental responsibility for the child until they turn 18.

That power can take effect on your death if you are the only person with parental responsibility for your children at the time when you die.

The parent can also appoint two guardians to act jointly.

If you are the only person responsible for your children and you die without making a will, a Court may have to decide on an appropriate guardian.

We always recommend that you carefully review your estate at least every 5 years, to take into account changing circumstances.

You may need to change your will to allow for a new spouse or further children.  (Don’t forget that a marriage or divorce can automatically cancel a will.)

You may need to add new assets or remove assets that you no longer own.  You may be worried that your will may be challenged by a close relative.  You may want to make an advance health directive or enduring power of guardianship.

When considering these matters, you should also think about naming a testamentary guardian in your will for your children.  Or, if you already have one, think about whether they are still the right person for the job.

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About

Peter Nevin     pnevin@taylorsmart.com.au
Peter Nevin is a Partner in our Commercial Litigation practice group. He specialises in commercial and general litigation, and provides detailed advice on industrial relations issues to both employers and employees. He also provides advice and representation in estate disputes on behalf of executors, beneficiaries and third party claimants.

Joshua Taylor     jtaylor@taylorsmart.com.au
Joshua is a member of our Commercial practice group. He provides commercial legal services and has experience in commercial leasing, property law and conveyancing, wills and estate planning, commercial contracts, corporations law, mining law and bankruptcy. He has also worked in native title matters.

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