What is a testamentary guardian?

A testamentary guardian is a person named in a parent's will or deed to care for their child after the parent's death: 

Role and responsibilities

A testamentary guardian's role is to make important decisions about a child's life such as their education, health, religion, where they live, culture and language, and name changes. 

Their responsibilities include:  

  • making major decisions about how the child is brought up.
  • helping make important decisions in the child’s life
  • supporting the child's development

When do they become a guardian?

A testamentary guardian automatically becomes a guardian if the parent was a guardian at the time of their death. If the parent wasn't a guardian, the testamentary guardian must apply to the court to be appointed. 

How do they work with other guardians?

If the child has other guardians, the testamentary guardian becomes a joint guardian. All guardians must make unanimous decisions about the child. 

Who can be a testamentary guardian?

A testamentary guardian must meet the following requirements:

  • Be at least 20 years old at the time of the parent's death
  • Share guardianship with the other parent if they are still alive

When to appoint them

The appointment can be made by deed or will, executed before or after the child's birth. 

Choosing a testamentary guardian

When choosing a testamentary guardian, you should consider things like: 

  • Your family values
  • Their values and religious beliefs
  • Your parenting style
  • Their parenting style
  • Their skills to parent
  • The candidate's financial situation
  • Their health
  • Their accessibility
  • Their family circumstances
  • Whether they have other work or family commitments
  • Where they live
  • Your children's comfort level.

What is a testamentary guardian unable to do?

A testamentary guardian doesn't automatically have the right to provide day-to-day care for the child. They must apply to the court to be involved in the child's day-to-day care. A testamentary guardian in Aotearoa New Zealand cannot automatically provide day-to-day care for a child.

Custody

A will cannot determine who has custody of a child. Custody is usually handled by private arrangements with family or a parenting order from the Family Court. 

Day-to-day care

A testamentary guardian must apply to the court for a parenting order to gain the right to day-to-day care.