Our German Desk
For parents, preparing a Will or Deed that appoints a testamentary guardian is an important step to ensure the well-being of your children if you die.
A testamentary guardian is a person who after a parent’s death, is responsible for providing input into the significant decisions about a child’s welfare and upbringing such as where they live, their education, culture, language, religion and major health decisions. A testamentary guardian does not automatically gain the right to provide the day-to-day care of a child (although they can) but rather acts as an overseer in a child’s life and is involved in important decisions.
The day-to-day care of a child typically falls to the surviving parent. However, if a testamentary guardian wants to have or share the day-to-day care of a child then they can apply for a parenting order. If both parents have died, the testamentary guardians appointed by each parent will decide the care arrangements.
Appointing a testamentary guardian is important for several reasons.
Peace of mind – When a parent passes away without appointing a testamentary guardian, the guardianship of their child typically falls to the surviving parent. However, if both parents die or are unable to care for the child, the Family Court will appoint a guardian, which may not align with your wishes.
Representation – A parent may appoint a testamentary guardian to act alongside the surviving parent, or the appointment can take effect following the death of both parents. For separated parents, appointing a testamentary guardian to act alongside your child’s surviving parent can help to ensure that your views about your child’s upbringing are represented and a connection with your family is maintained.
Minimises disputes – Appointing a testamentary guardian simplifies the legal process for those left behind. When your wishes are clearly documented, it reduces the potential for family disputes or confusion over who should be the guardian for your child.
Continuity – Appointing a testamentary guardian allows you to choose someone who understands your parenting style, family values, and cultural background. This can provide continuity in your child’s upbringing.
A Memorandum of Wishes is an additional document you can put in place outlining your preferences regarding your child’s upbringing. Such a document may provide guidance on where you would like your child to go to school, your wishes for their extracurricular activities, travel or life experiences as well as any cultural or religious traditions you wish to uphold. While a Memorandum of Wishes is not legally binding, it serves as a guide for your guardians to understand your values, beliefs, and wishes concerning your child’s care.
We understand how hectic life can be with young children. Putting a Will and Memorandum of Wishes in place is a simple way to ensure that your child’s wellbeing and upbringing is looked after by people you trust.
If you have any questions or would like to put a Will and Memorandum of Wishes in place, please get in touch with our Private Wealth Team or your usual contact at Hesketh Henry.
Disclaimer: The information contained in this article is current at the date of publishing and is of a general nature. It should be used as a guide only and not as a substitute for obtaining legal advice. Specific legal advice should be sought where required.
