Testamentary Guardianship Act 1984

This Act is the Testamentary Guardianship Act 1984.

The dictionary at the end of this Act is part of this Act.

Note 1 The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere in this Act.

For example, the signpost definition ‘guardian, of a child—see section 5.’ means that the term ‘guardian’ is defined in that section.

Note 2 A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).

A note included in this Act is explanatory and is not part of this Act.

Note See the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.

In this Act:

parent of a child does not include a parent whose guardianship of the child has been abrogated by—

a judgment, decree or order of a federal court or a court of a State that is in force; or

a judgment, decree or order of a court in a foreign country that is in force and that would be recognised by a Territory court in conformity with the common law rules of private international law.

Note State includes the Northern Territory (see Legislation Act, dict, pt 1).

For this Act, a guardian of a child (other than a reference to a testamentary guardian) means any guardian of the child, whether appointed—

in accordance with this Act or a law of a State; or

by a judgment, decree or order of a federal court or a court of a State; or

in accordance with a law of a foreign country or part of a foreign country or by a judgment, decree or order of a court in a foreign country and that would be recognised by a Territory court in conformity with the common law rules of private international law.

However, a guardian of a child does not include—

the director‑general responsible for the Children and Young People Act 2008; or

a Minister of the Commonwealth or of a State who, under a law of the Commonwealth or of the State is, in his or her capacity as Minister, the guardian of the child.

Note State includes the Northern Territory (see Legislation Act, dict, pt 1).

In this Act:

testamentary guardian means a guardian appointed under section 8.

This Act applies in relation to a child—

whether the child was born in the ACT or elsewhere; and

whether the child was born before or after the commencement of this Act.

Nothing in this Act is to be taken to affect the operation of the following sections of the Adoption Act 1993:

 section 8 (Rules of private international law not to apply)

 section 43 (General effect)

 section 53 (Recognition of Australian adoptions)

 section 57L (Recognition of adoption order made outside Australia).

Each parent and each guardian of a child may, by will or codicil, appoint a person to be a guardian of the child or persons to be guardians of the child.

An appointment of a testamentary guardian of a child by a person who was not, immediately before the person’s death, a parent or guardian of the child is of no effect.

An appointment of a testamentary guardian of a child takes effect—

where the appointor is survived by a parent of the child—

if the instrument of appointment shows that the appointor intended the appointment to take effect on his or her death—on the death of the appointor; or

in any other case—on the death of that parent; or

where the appointor is not survived by a parent of the child—on the death of the appointor.

A testamentary guardian of a child has responsibility for the long‑term welfare of the child and has, in relation to that child, all the powers, rights and duties that are vested by law or custom in the guardian of a child, other than—

the right to have the daily care and control of the child; and

the right and responsibility to make decisions concerning the daily care and control of the child.

Without limiting the application of subsection (1), a testamentary guardian of a child:

may take into his or her custody, and may manage, the real and personal property of the child (not being property held by a trustee under a trust) until he or she ceases to be the guardian of the child; and

holds any real and personal property of the child that comes into his or her custody as trustee for the child; and

may bring such proceedings as may be necessary to give effect to all or any of his or her powers under this section, including his or her powers as trustee for the child; and

is responsible for accounting to the child, when the child attains the age of 18 years, for his or her custody and management of that property.

Where, at any time after an appointment of a testamentary guardian of a child takes effect—

no parent of the child is alive; and

no judgment or order of a federal court or a court of a State or Territory granting custody or the right to have the daily care and control of the child (however expressed) to another person is in force; and

no order relating to the child has been registered under the Family Law Act 1975 (Cwlth), section 70G; and

no order that would, under the Family Law Act 1975 (Cwlth), section 60F have effect for that Act as if it were an order granting custody of the child is in force;

then the testamentary guardian has, in addition to the rights and responsibility referred to in subsections (1) and (2)—

the right to have the daily care and control of the child; and

the right and responsibility to make decisions concerning the daily care and control of the child.

Where—

an appointment of a testamentary guardian of a child has taken effect; and

another person or persons has or have the guardianship of that child;

the testamentary guardian shall discharge his or her responsibility and duties and exercise his or her powers and rights in relation to that child jointly with that other person or those other persons.

A testamentary guardian whose appointment does not, under section 10, take effect on the death of the appointor may at any time apply to the Supreme Court for an order that his or her appointment take effect immediately.

Where an appointment of a testamentary guardian of a child has taken effect under section 10 (a) (i) or subsection (1), a parent of that child may apply to the Supreme Court for an order that the guardianship of the testamentary guardian be suspended until the death of the parent or for such period as is specified in the application.

On an application under this section, the Supreme Court may make or refuse to make the order sought, and may make such other orders as it thinks just.