Considerations for appointing a Testamentary Guardian

For many clients, appointing a testamentary Guardian for an infant child is an extremely important decision as it impacts directly on the welfare of their child.

A client should be reminded that even though they may appoint a testamentary Guardian, it can be challenged by a surviving parent under section 61C of the Family Law Act 1975 and a court can exercise discretion to select another testamentary Guardian if it considers to be in the child's best interests. If there is no court challenge, then the testamentary Guardian's appointment is binding.

For clients who do have infant children, Inherit's AI Legal bot will help guide your client to identify any specific wishes, directions or restrictions to be included either in the Will or an external document relating to the raising of their children. Commonly this document is described as a "Statement of Wishes". Strictly speaking, such a document is non-binding on the Guardian. However, it will inform the executor or trustee as to how monies that are held on trust for the benefit of the child are to be spent or applied. For example, the Will or Statement of Wishes can address:

- where the child is to live
- whether the child is to undertake a particular place of education;
- religious upbringing;
- cultural experiences or associations, including contact with other family members;
- use of trust funds for travel, tertiary or vocational education and accommodation costs;
- the amount and frequency of income support to the child Guardian for the care of the children; and
- use of trust funds to make interest-free or interest payable loans to the guardians for the benefit of the children (e.g. extension to their home)

The role of the testamentary Guardian automatically ceases when the child reaches the age of 18 years unless the child suffers from a disability and the inherit process will identify the extent of this disability.

Inherits legal bot will also help you identify whether there is any family conflict so that the Inherit panel lawyer can consider if this conflict will impact on the appointment of a Guardian and the welfare of children.