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Testamentary guardians: Should your child have one?

The Care of Children Act 2004 makes provision for a parent to appoint “Testamentary Guardians” for their children through their will.  A Testamentary Guardian will become that child’s guardian automatically when the parent dies and will not be required to make an application to the Family Court.  A Testamentary Guardian can be appointed to care for a child up until that child reaches the age of 18 years (or younger in certain circumstances).

What are Testamentary Guardian responsibilities?

Testamentary Guardians are responsible for making decisions relating to the child’s day-to-day care including, but not limited to, where and with whom the child lives, where the child goes to school and decisions relating to medical treatment.

Testamentary Guardians have the same responsibilities as a parent, however they are not automatically entitled to have the child in their direct day-to-day care.  In order for direct day-to-day care, the Testamentary Guardian will need to apply to the Family Court for a Guardianship or Parenting Order.

What to consider when appointing a Testamentary Guardian

Some aspects which you may wish to consider when choosing a Testamentary Guardian include:

  • Who is a good role model for your child?
  • Who will raise your child the way you would like your child to be raised?
  • Who is in the best position to raise your child (both financially and emotionally), and are they in good health?
  • If you have an only child, will your child struggle to adjust to a family of, say, five children?  Or will that family struggle to adjust to the new addition?
  • If you have more than one child, can you keep the children together under the same Testamentary Guardian’s care?
  • Where does the Testamentary Guardian live?
  • What values and beliefs does the Testamentary Guardian have?  Are they similar to yours?
  • The age of the proposed Testamentary Guardian.  As a minimum, they must be over 20 years old.
  • Is the Testamentary Guardian aware of their proposed appointment?  It is best to discuss with the Testamentary Guardian before you name them in your will.
Can the appointment be challenged?

The appointment of a Testamentary Guardian can be challenged by way of an application to the Family Court.

As Testamentary Guardians can be appointed after the death of only one of their parents, the Testamentary Guardian will be a guardian alongside the surviving parent. If the surviving parent disapproves the appointment of that Testamentary Guardian, they can challenge that appointment through the Family Court.

Why are Testamentary Guardians important?

If both parents (or one parent in some situations) die without a Testamentary Guardian appointed, it will be a decision of the Courts to appoint a guardian for your children.  There is no guarantee that your child/children will be appointed a Testamentary Guardian that you would have chosen yourself.  Therefore, it is important to outline your wishes with regards to Testamentary Guardians of your child/children in your will.

Hayley is a Solicitor in our Asset Planning Team and can be contacted on 07 958 7472.

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