Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
Australian Capital Territory
Testamentary Guardianship Act 1984
A1984-34
Republication No 10
Effective: 22 November 2018
Republication date: 22 November 2018
Last amendment made by A2018-42
Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
About this republication
The republished law
This is a republication of the Testamentary Guardianship Act 1984 (including any amendment
made under the Legislation Act 2001, part 11.3 (Editorial changes)) as in force on
22 November 2018. It also includes any commencement, amendment, repeal or expiry affecting
this republished law to 22 November 2018.
The legislation history and amendment history of the republished law are set out in endnotes 3
and 4.
Kinds of republications
The Parliamentary Counsel’s Office prepares 2 kinds of republications of ACT laws (see the ACT
legislation register at www.legislation.act.gov.au):
• authorised republications to which the Legislation Act 2001 applies
• unauthorised republications.
The status of this republication appears on the bottom of each page.
Editorial changes
The Legislation Act 2001, part 11.3 authorises the Parliamentary Counsel to make editorial
amendments and other changes of a formal nature when preparing a law for republication.
Editorial changes do not change the effect of the law, but have effect as if they had been made by
an Act commencing on the republication date (see Legislation Act 2001, s 115 and s 117). The
changes are made if the Parliamentary Counsel considers they are desirable to bring the law into
line, or more closely into line, with current legislative drafting practice.
This republication does not include amendments made under part 11.3 (see endnote 1).
Uncommenced provisions and amendments
If a provision of the republished law has not commenced, the symbol U appears immediately
before the provision heading. Any uncommenced amendments that affect this republished law
are accessible on the ACT legislation register (www.legislation.act.gov.au). For more
information, see the home page for this law on the register.
Modifications
If a provision of the republished law is affected by a current modification, the
symbol M appears immediately before the provision heading. The text of the modifying
provision appears in the endnotes. For the legal status of modifications, see the Legislation
Act 2001, section 95.
Penalties
At the republication date, the value of a penalty unit for an offence against this law is $160 for an
individual and $810 for a corporation (see Legislation Act 2001, s 133).
R10
22/11/18
Testamentary Guardianship Act 1984
Effective: 22/11/18
contents 1
Authorised by the ACT Parliamentary Counsel—also accessible at
Australian Capital Territory
Testamentary Guardianship Act 1984
Contents
Page
1 Name of Act 2
2 Dictionary 2
3 Notes 2
4 Meaning of parent 2
5 Meaning of guardian 3
6 Meaning of testamentary guardian 3
7 Application of Act 3
8 Appointment of testamentary guardians 4
9 Appointment by persons not entitled to guardianship 4
10 Time when appointment effective 4
11 Effect of appointment 5
12 Applications to Supreme Court 6
13 Powers of Supreme Court 7
Contents
Page
contents 2 Testamentary Guardianship Act 1984
Effective: 22/11/18
R10
22/11/18
Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
Dictionary 8
Endnotes
1 About the endnotes 9
2 Abbreviation key 9
3 Legislation history 10
4 Amendment history 13
5 Earlier republications 16
6 Renumbered provisions 16
R10
22/11/18
Testamentary Guardianship Act 1984
Effective: 22/11/18
page 1
Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
Australian Capital Territory
Testamentary Guardianship Act 1984
An Act to provide for the appointment of testamentary guardians, and for related
purposes
Section 1
page 2 Testamentary Guardianship Act 1984
Effective: 22/11/18
R10
22/11/18
Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
1 Name of Act
This Act is the Testamentary Guardianship Act 1984.
2 Dictionary
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)).
3 Notes
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.
4 Meaning of parent
In this Act:
parent of a child does not include a parent whose guardianship of the
child has been abrogated by—
(a) a judgment, decree or order of a federal court or a court of a
State that is in force; or
(b) 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).
Section 5
R10
22/11/18
Testamentary Guardianship Act 1984
Effective: 22/11/18
page 3
Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
5 Meaning of guardian
(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—
(a) in accordance with this Act or a law of a State; or
(b) by a judgment, decree or order of a federal court or a court of a
State; or
(c) 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.
(2) However, a guardian of a child does not include—
(a) the director-general responsible for the Children and Young
People Act 2008; or
(b) 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).
6 Meaning of testamentary guardian
In this Act:
testamentary guardian means a guardian appointed under section 8.
7 Application of Act
(1) This Act applies in relation to a child—
(a) whether the child was born in the ACT or elsewhere; and
(b) whether the child was born before or after the commencement
of this Act.
Section 8
page 4 Testamentary Guardianship Act 1984
Effective: 22/11/18
R10
22/11/18
Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
(2) 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).
8 Appointment of testamentary guardians
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.
9 Appointment by persons not entitled to guardianship
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.
10 Time when appointment effective
An appointment of a testamentary guardian of a child takes effect—
(a) where the appointor is survived by a parent of the child—
(i) 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
(ii) in any other case—on the death of that parent; or
(b) where the appointor is not survived by a parent of the child—on
the death of the appointor.
Section 11
R10
22/11/18
Testamentary Guardianship Act 1984
Effective: 22/11/18
page 5
Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
11 Effect of appointment
(1) 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—
(a) the right to have the daily care and control of the child; and
(b) the right and responsibility to make decisions concerning the
daily care and control of the child.
(2) Without limiting the application of subsection (1), a testamentary
guardian of a child:
(a) 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
(b) holds any real and personal property of the child that comes into
his or her custody as trustee for the child; and
(c) 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
(d) 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.
(3) Where, at any time after an appointment of a testamentary guardian
of a child takes effect—
(a) no parent of the child is alive; and
(b) 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
Section 12
page 6 Testamentary Guardianship Act 1984
Effective: 22/11/18
R10
22/11/18
Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
(c) no order relating to the child has been registered under the
Family Law Act 1975 (Cwlth), section 70G; and
(d) 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)—
(e) the right to have the daily care and control of the child; and
(f) the right and responsibility to make decisions concerning the
daily care and control of the child.
(4) Where—
(a) an appointment of a testamentary guardian of a child has taken
effect; and
(b) 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.
12 Applications to Supreme Court
(1) 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.
(2) 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.
Section 13
R10
22/11/18
Testamentary Guardianship Act 1984
Effective: 22/11/18
page 7
Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
(3) 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.
13 Powers of Supreme Court
(1) Nothing in this Act shall be taken to affect the powers of the Supreme
Court relating to the guardianship and custody of children.
(2) Without limiting subsection (1), nothing in this Act shall be taken to
affect the power of the Supreme Court—
(a) to settle disputes in relation to a child between persons having
the guardianship of the child; or
(b) to appoint a guardian of a child; or
(c) to appoint 1 of a number of persons having the guardianship of
a child to be the sole guardian of that child; or
(d) to revoke the appointment of a guardian of a child.
Dictionary
page 8 Testamentary Guardianship Act 1984
Effective: 22/11/18
R10
22/11/18
Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
Dictionary
(see s 2)
Note 1 The Legislation Act contains definitions and other provisions relevant to
this Act.
Note 2 For example, the Legislation Act, dict, pt 1, defines the following terms:
• ACT
• child
• civil union
• foreign country
• State
• Supreme Court
• the Territory.
child means a person who is not and has not been married or in a civil
union, and has not attained the age of 18 years.
guardian, of a child—see section 5.
parent, of a child—see section 4.
testamentary guardian—see section 6.
Endnotes
About the endnotes 1
R10
22/11/18
Testamentary Guardianship Act 1984
Effective: 22/11/18
page 9
Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
Endnotes
1 About the endnotes
Amending and modifying laws are annotated in the legislation history and the
amendment history. Current modifications are not included in the republished law
but are set out in the endnotes.
Not all editorial amendments made under the Legislation Act 2001, part 11.3 are
annotated in the amendment history. Full details of any amendments can be
obtained from the Parliamentary Counsel’s Office.
Uncommenced amending laws are not included in the republished law. The details
of these laws are underlined in the legislation history. Uncommenced expiries are
underlined in the legislation history and amendment history.
If all the provisions of the law have been renumbered, a table of renumbered
provisions gives details of previous and current numbering.
The endnotes also include a table of earlier republications.
2 Abbreviation key
A = Act NI = Notifiable instrument
AF = Approved form o = order
am = amended om = omitted/repealed
amdt = amendment ord = ordinance
AR = Assembly resolution orig = original
ch = chapter par = paragraph/subparagraph
CN = Commencement notice pres = present
def = definition prev = previous
DI = Disallowable instrument (prev...) = previously
dict = dictionary pt = part
disallowed = disallowed by the Legislative r = rule/subrule
Assembly reloc = relocated
div = division renum = renumbered
exp = expires/expired R[X] = Republication No
Gaz = gazette RI = reissue
hdg = heading s = section/subsection
IA = Interpretation Act 1967 sch = schedule
ins = inserted/added sdiv = subdivision
LA = Legislation Act 2001 SL = Subordinate law
LR = legislation register sub = substituted
LRA = Legislation (Republication) Act 1996 underlining = whole or part not commenced
mod = modified/modification or to be expired
Endnotes
3 Legislation history
page 10 Testamentary Guardianship Act 1984
Effective: 22/11/18
R10
22/11/18
Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
3 Legislation history
The Testamentary Guardianship Act 1984 was originally the Testamentary
Guardianship Ordinance 1984. It became an ACT Act on self-government (11
May 1989).
Before 11 May 1989, ordinances commenced on their notification day unless
otherwise stated (see Seat of Government (Administration) Act 1910 (Cwlth), s 12).
After 11 May 1989 and before 10 November 1999, Acts commenced on their
notification day unless otherwise stated (see Australian Capital Territory (Self-
Government) Act 1988 (Cwlth) s 25).
Legislation before becoming Territory enactment
Testamentary Guardianship Act 1984 A1984-34
notified 23 July 1984
commenced 23 July 1984
as amended by
Children’s Services (Miscellaneous Amendments) Ordinance 1986
Ord1986-14
notified 4 June 1986
commenced 26 April 1988 (s 2 and Cwlth Gaz 1988 No S116)
Testamentary Guardianship (Amendment) Ordinance 1987
Ord1987-15
notified 1 May 1987
commenced 1 May 1987
Self-Government (Consequential Amendments) Ordinance 1989
Ord1989-38 sch 1
notified 10 May 1989 (Cwlth Gaz 1989 No S160)
s 1, s 2 commenced 10 May 1989 (s 2 (1))
sch 1 commenced 11 May 1989 (s 2 (2) and see Cwlth Gaz 1989
No S164)
Legislation after becoming Territory enactment
Adoption (Consequential Amendments) Act 1993 A1993-23 s 6
notified 8 April 1993 (Gaz 1993 No S57)
s 1, s 2 commenced 8 April 1993 (s 2 (1))
s 6 commenced 31 July 1993 (s 2 (2) and see Gaz 1993 No 28)
Endnotes
Legislation history 3
R10
22/11/18
Testamentary Guardianship Act 1984
Effective: 22/11/18
page 11
Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
Statutory Offices (Miscellaneous Provisions) Act 1994 A1994-97
sch pt 1
notified 15 December 1994 (Gaz 1994 No S280)
s 1, s 2 commenced 15 December 1994 (s 2 (1))
sch pt 1 commenced 15 December 1994 (s 2 (2) and Gaz 1994
No S293)
Children and Young People (Consequential Amendments) Act 1999
A1999-64 sch 2
notified 10 November 1999 (Gaz 1999 No 45)
s 1, s 2 commenced 10 Nov 1999 (s 2 (1))
sch 2 commenced 10 May 2000 (s 2 (2))
Legislation (Consequential Amendments) Act 2001 A2001-44 pt 382
notified 26 July 2001 (Gaz 2001 No 30)
s 1, s 2 commenced 26 July 2001 (IA s 10B)
pt 382 commenced 12 September 2001 (s 2 and see Gaz 2001
No S65)
Civil Unions Act 2006 A2006-22 sch 1 pt 1.28
notified LR 19 May 2006
s 1, s 2 commenced 19 May 2006 (LA s 75 (1))
sch 1 pt 1.28 never commenced
Note Act repealed by disallowance 14 June 2006 (see Cwlth
Gaz 2006 No S93)
Statute Law Amendment Act 2007 A2007-3 sch 3 pt 3.98
notified LR 22 March 2007
s 1, s 2 taken to have commenced 1 July 2006 (LA s 75 (2))
sch 3 pt 3.98 commenced 12 April 2007 (s 2 (1))
Civil Partnerships Act 2008 A2008-14 sch 1 pt 1.24
notified LR 15 May 2008
s 1, s 2 commenced 15 May 2008 (LA s 75 (1))
sch 1 pt 1.24 commenced 19 May 2008 (s 2 and CN2008-8)
Endnotes
3 Legislation history
page 12 Testamentary Guardianship Act 1984
Effective: 22/11/18
R10
22/11/18
Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
Children and Young People (Consequential Amendments) Act 2008
A2008-20 sch 3 pt 3.19
notified LR 17 July 2008
s 1, s 2 commenced 17 July 2008 (LA s 75 (1))
s 3 commenced 18 July 2008 (s 2 (1))
sch 3 pt 3.19 commenced 27 October 2008 (s 2 (4) and see Children
and Young People Act 2008 A2008-19, s 2 and CN2008-13)
Adoption Amendment Act 2009 (No 2) A2009-36 sch 1 pt 1.5
notified LR 22 October 2009
s 1, s 2 commenced 22 October 2009 (LA s 75 (1))
sch 1 pt 1.5 commenced 22 April 2010 (s 2 and LA s 79)
Administrative (One ACT Public Service Miscellaneous Amendments)
Act 2011 A2011-22 sch 1 pt 1.153
notified LR 30 June 2011
s 1, s 2 commenced 30 June 2011 (LA s 75 (1))
sch 1 pt 1.153 commenced 1 July 2011 (s 2 (1))
Civil Unions Act 2012 A2012-40 sch 3 pt 3.25
notified LR 4 September 2012
s 1, s 2 commenced 4 September 2012 (LA s 75 (1))
sch 3 pt 3.25 commenced 11 September 2012 (s 2)
Statute Law Amendment Act 2018 A2018-42 sch 3 pt 3.34
notified LR 8 November 2018
s 1, s 2 taken to have commenced 1 July 2018 (LA s 75 (2))
sch 3 pt 3.34 commenced 22 November 2018 (s 2 (1))
Endnotes
Amendment history 4
R10
22/11/18
Testamentary Guardianship Act 1984
Effective: 22/11/18
page 13
Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
4 Amendment history
Name of Act
s 1 sub A2007-3 amdt 3.488
Dictionary
s 2 am Ord1986-14 s 11; A1994-97 sch pt 1; A1999-64 sch 2;
A2006-22 amdt 1.119 (A2006-22 rep before commenced by
disallowance (see Cwlth Gaz 2006 No S93))
defs reloc to dict A2007-3 amdt 3.489
sub A2007-3 amdt 3.490
Notes
s 2A renum as s 3
Meaning of parent
s 2B renum as s 4
Meaning of guardian
s 2C renum as s 5
Meaning of testamentary guardian
s 2D renum as s 6
Notes
s 3 orig s 3
renum as s 7
pres s 3
(prev s 2A) ins A2007-3 amdt 3.490
renum as s 3 A2007-3 amdt 3.494
Meaning of parent
s 4 orig s 4
renum as s 8
pres s 4
(prev s 2B) ins A2007-3 amdt 3.490
renum as s 4 A2007-3 amdt 3.494
am A2008-14 amdt 1.83; pars renum R5 LA
Meaning of guardian
s 5 orig s 5
renum as s 9
pres s 5
(prev s 2C) ins A2007-3 amdt 3.490
renum as s 5 A2007-3 amdt 3.494
am A2008-20 amdt 3.43; A2011-22 amdt 1.440
Endnotes
4 Amendment history
page 14 Testamentary Guardianship Act 1984
Effective: 22/11/18
R10
22/11/18
Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
Meaning of testamentary guardian
s 6 orig s 6
renum as s 10
pres s 6
(prev s 2D) ins A2007-3 amdt 3.490
renum as s 6 A2007-3 amdt 3.494
Application of Act
s 7 orig s 7
renum as s 11
pres s 7
(prev s 3) am A1993-23 s 6
renum as s 7 A2007-3 amdt 3.494
am A2009-36 amdt 1.7
Appointment of testamentary guardians
s 8 orig s 8
renum as s 12
pres s 8
(prev s 4) renum as s 8 A2007-3 amdt 3.494
Appointment by persons not entitled to guardianship
s 9 orig s 9
renum as s 13
pres s 9
(prev s 5) renum as s 9 A2007-3 amdt 3.494
Time when appointment effective
s 10 orig s 10
om Ord1989-38 sch 1
pres s 10
(prev s 6) renum as s 10 A2007-3 amdt 3.494
Effect of appointment
s 11 orig s 11
om A2001-44 amdt 1.4022
pres s 11
(prev s 7) am Ord1987-15; ss renum R3 LA
renum as s 11 A2007-3 amdt 3.494
am A2018-42 amdt 3.112
Applications to Supreme Court
s 12 (prev s 8) am A2007-3 amdt 3.491, amdt 3.492
renum as s 12 A2007-3 amdt 3.494
ss renum R4 LA
Powers of Supreme Court
s 13 (prev s 9) renum as s 13 A2007-3 amdt 3.494
Endnotes
Amendment history 4
R10
22/11/18
Testamentary Guardianship Act 1984
Effective: 22/11/18
page 15
Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
Dictionary
dict ins A2007-3 amdt 3.493
am A2012-40 amdt 3.103
def child am A2006-22 amdt 1.117 (A2006-22 rep before
commenced by disallowance (see Cwlth Gaz 2006 No S93))
reloc from s 2 A2007-3 amdt 3.489
am A2012-40 amdt 3.102
def exnuptial child om A2006-22 amdt 1.118 (A2006-22 rep
before commenced by disallowance (see Cwlth Gaz 2006
No S93))
reloc from s 2 A2007-3 amdt 3.489
om A2008-14 amdt 1.84
def guardian ins A2007-3 amdt 3.493
def parent ins A2007-3 amdt 3.493
def testamentary guardian ins A2007-3 amdt 3.493