What is a Testamentary Guardian

A testamentary guardian is someone you nominate in your will to step into a guardianship role for your children after you die. The appointment isn't something your nominee has to agree to in advance — it simply takes effect on a parent’s (or both parents’) death, as long as:

• You as the parent are a guardian of the child at the time of death, and
• the nominee is at least 20 years old.

What responsibilities are given:

If you are the sole guardian (e.g., the other parent is deceased or was never a guardian), the testamentary guardian becomes the child's sole guardian.

• If you choose the guardianship role to take effect only on your death and there's a surviving guardian (e.g., the other parent), the testamentary guardian becomes a joint guardian alongside them — not a replacement, but an additional voice in decision-making.
  
  
• Guardianship carries the rights and responsibilities to make major decisions about the child's upbringing — schooling, religion, culture, and medical treatment — not day-to-day care. Where there's more than one guardian, decisions generally should be agreed jointly; any disputes would go to the Family Court.

What responsibilities are not given:

• A testamentary guardian does not automatically get day-to-day care of the child (the child doesn't necessarily go and live with them). If the intention is for the guardian to also raise the child day-to-day, that person (or another party) would need to seek a parenting order separately.
  
  
• The nominee doesn't have to accept the role. If they don't want it, they must apply to the Family Court to be removed — it isn't as simple as just declining.
  
  
• Anyone unhappy with the choice (e.g., another family member) can also apply to the Family Court to challenge or remove the appointment.

When it ends

Guardianship (including testamentary guardianship) ends automatically when the child turns 18, marries, enters a civil union, or begins living in a de facto relationship — or earlier if the court removes the guardian.

We recommend that you:

• Talk to the proposed guardian first, even though it's not legally required — since they can't easily walk away from the role once it takes effect.
  
  
• Revisit the choice periodically (e.g., whenever the will is reviewed) to make sure the nominee is still the right person and still willing.

It is important to note that if you want the guardian to also have day-to-day care, a will alone won't achieve that — this would need to be addressed separately (and ultimately depends on what a court, or agreement between guardians, decides is in the child's best interests).