A testamentary guardian is an adult designated in a parent’s Will to care for that person’s child in case both parents die before the child turns 18.
While the thought might make you shudder, you need to write a Will and choose a guardian so the courts don't do it for you should the worst should happen.
If you think your sister or best friend would automatically receive custody of your child, you're mistaken. Unless you specifically name a guardian in your Will, any person with sufficient interest can apply for guardianship of your children. In this case, the Family Court decides who should become legal guardian based on the perceived best interests of your child. This may not necessarily be the person who you would choose.
This can be a distressing process for a child, on top of the emotional turmoil of losing their parents. A disagreement between family members who wish to take care of the child can only compound the child’s anxiety. Even after the court chooses a person, conflict may still exist because of a breakdown of the family relationship with the child.
How do I choose the right person?
You and your partner should each name the same person as the guardian of your child to avoid conflicts.
Deciding who will raise your child in your absence is one of the toughest decisions you'll face as a parent.
Make a list of all the possible candidates, and then sit down with your partner and talk over the pros and cons of each one.
You should think about:
- Do you trust the person to raise your child the way you want them to be raised? Think about their parenting style, values and beliefs.
- Is the person willing and physically able to carry out the role? For instance, are they considering having more children and may not have energy to devote to your child.
- What kind of relationship does this person have with your child? You want someone your child feels comfortable with and respects.
- Where does the person live? You may want to avoid your child having to relocate.
- Is the person financially stable and able to make good financial decisions? Your Will can also arrange for your finances to provide for your children, and advance payments for education expenses and the like, but this will only go so far. Further, you should choose someone who has a good relationship with the executor of your Will to ensure they will work together for the benefit of your child.
- How old is this person? You can always amend your Will should your intended Guardian become physically unable to care for your child. Else, you could specify, for example, that your parents be until a particular age, after which responsibility passes to a sibling or friend. Think about this carefully though, as a move like that could be difficult on your child.
Once you have made your decision, you should take the time to document your hopes for raising your child in a letter and attach it to your Will. You might want to cover issues like education, travel and the values that you think are important. Reread the letter every year or two and update it if necessary.
You will need to update your Will and change your chosen guardian if your chosen guardian changes his or her mind about the role or if your child or the proposed executor fall out with your chosen guardian.