General information only — not legal advice. Guardianship is governed by the Care of Children Act 2004 and depends on the family circumstances. This guide explains the general position only. If you have children and are making a will, get advice from a qualified New Zealand lawyer about guardianship appointments and how they interact with your estate.
What a guardian is
A guardian is a person with legal responsibility for a child’s day-to-day care, welfare and development — decisions about where they live, their education, their health, and their general upbringing. In New Zealand, a child’s parents are usually their guardians. A will can also appoint guardians who step into that role if you are no longer able to care for your children.
The short answer
Yes — if you have children under 18, you can appoint guardians for them in your will. These are called testamentary guardians, and they are appointed to look after your children if you die. It is one of the most important things a parent can put in a will.
How it works in New Zealand
Under the Care of Children Act 2004, you can appoint a guardian in your will (or by a separate deed). If one parent dies, the surviving parent usually continues as the child’s guardian, and the person you appointed may act alongside them depending on the circumstances. If both parents die, your appointed guardians take on the role of caring for your children.
The interaction between a surviving parent, an appointed guardian and wider family can be nuanced, especially after separation or in blended families. That is exactly why guardianship appointments deserve individual advice rather than a one-size-fits-all approach.
Who to choose
Think carefully about who you would trust with your children’s day-to-day life:
- someone who shares your values about care, education and family;
- someone willing to take the role — ask them first;
- someone with the health, energy and stability to care for children long-term;
- someone with a genuine relationship with your children;
- someone reasonably nearby, if that matters for schooling and family connections;
- someone who can work with your wider family, or at least handle the differences; and
- a backup guardian, in case your first choice cannot act.
Things to think through
- whether siblings should stay together;
- how your culture, faith and values should be reflected in the children’s upbringing;
- how the guardians will be supported financially — a guardian is not automatically entitled to your money, so the will may need to provide for the children’s care;
- whether the same person should be guardian and executor — it can work, but separating the roles can be sensible; and
- what happens if your relationship with the chosen guardians changes over time.
A guardian looks after the children; an executor looks after the estate. They can be the same person, but many parents prefer different people, so the person caring for the children is not also managing the money, or vice versa. If the children will need financial support, the will can make provision for that — for example, through a trust managed by the executor.
How to appoint a guardian
Guardianship appointments should be made clearly in your will, naming the person (and a backup), and signed and witnessed like the rest of the will. If you appoint guardians by a separate deed, make sure it is properly executed and kept with your will. Tell the people you have chosen, and tell your executor and family what you have arranged.
What happens if you don’t appoint
If both parents die without appointing guardians, the court decides who will care for the children. Family members may apply, the process can take time, and the outcome may not match what you would have wanted. The court’s first concern is the welfare and best interests of the child, but your wishes are most likely to be respected when you have written them down.
Keep appointments current
Review your guardian appointments whenever your life changes — a new relationship, a separation, a move, a change in your children’s needs, or a change in the people you have chosen. A guardian appointment in an old will can be as out of date as any other part of it.
The bottom line
Appointing guardians in your will is one of the most caring decisions a parent can make. Choose people you trust, ask them first, name a backup, and review the choice as life changes. Combined with sensible estate arrangements, it means your children are cared for by people you chose, not left to be decided after the fact.