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Testamentary Guardians – Who will look after my children if I die? - Mortlock McCormack Law | Property and Commercial Law | Christchurch, New Zealand
Testamentary Guardians – Who will look after my children if I die? - Mortlock McCormack Law | Property and Commercial Law | Christchurch, New Zealand
Testamentary Guardians – Who will look after my children if I die? - Mortlock McCormack Law | Property and Commercial Law | Christchurch, New Zealand
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Testamentary Guardians – Who will look after my children if I die?

March 2022 Annie Withington

What is a Testamentary Guardian?

The Care of Children Act 2004 allows parents to appoint a person in their Will to “step into their shoes” as guardian for their child or children in the event that they die. These people are known as testamentary guardians.

Who can Appoint a Testamentary Guardian?

Any parent of a child can appoint a testamentary guardian.  On the death of the parent, the person appointed under the parent’s Will automatically acquires the guardianship rights of that person. This could be the rights of a sole guardian or as a joint guardian together with any existing guardians or parent.

A parent who is not a guardian is able to appoint a testamentary guardian under their Will but this appointee will need to obtain an Order from the Family Court to give effect to this appointment.

What are the Responsibilities of a Testamentary Guardian?

A testamentary guardian has all of the same rights and responsibilities as other guardians, that is, the right to be responsible for the upbringing and care of the child. However being a testamentary guardian does not automatically mean you assume the role of providing day-to-day care.

Guardians should reach a private agreement as to the care arrangements of the child, and if there is a dispute, the testamentary guardian can apply for a Parenting Order from the Family Court giving them day-to-day care of the child.

Under the Care of Children Act 2004, the responsibilities of a guardian include:

  1. Contributing to the child’s intellectual, emotional, physical, social, cultural, and other personal development; and
  2. Determining for or with the child, or helping the child to determine, questions about important matters affecting the child.

“Important matters affecting the child” include:

  1. Where the child lives. This includes any overseas holidays;
  2. Their education;
  3. Medical treatment (other than routine medical treatment). This includes decisions about vaccinations or surgery;
  4. What their culture, language and religion will be; and
  5. Any changes to the child’s name.

The testamentary guardian’s rights and responsibilities end when the child turns 18 or earlier if the child marries, enters a civil union, or lives with another person as a de facto partner.

Do I Need to Appoint a Testamentary Guardian?

It is not a legal requirement for you to appoint a testamentary guardian in your Will. Whether you should appoint a testamentary guardian depends on your personal circumstances.

If you have separated from the other parent of your child, then you might consider appointing a testamentary guardian if you have concerns about your child or children maintaining a connection with your side of the family. You may also have certain views, values or religious beliefs that could be represented through a testamentary guardian.

When deciding who to appoint, you will need to think carefully about what kind of relationship this person has with your child or children and whether they would be capable of taking on the role of guardian. Have they been a big part of the children’s lives? How many children do they have of their own? Do they have other dependents such as elderly family members to take care of?

Guardians (testamentary or otherwise) must consult with each other and make decisions jointly so it is also important to consider the relationship your testamentary guardian has with the other parent or any other guardians.

If you would like to discuss the above or if you need an update to your Will, please get in touch with Annie Withington, Solicitor (03 343 8583 / annie@mmlaw.co.nz).