What Is The Difference Between Testamentary Guardianship And Natural Guardianship?

The terms testamentary guardianship and natural guardianship refer to different types of guardianship, each with distinct legal implications for the care and custody of a child.

Testamentary Guardianship

This type of guardianship is appointed through a will. A parent, typically the mother or father, may specify in their will who should become the guardian of their child in the event of their death.

The person chosen in the will is known as a testamentary guardian.

It only takes effect after the parent's death and can be contested by other interested parties if they disagree with the choice.

The role of testamentary guardianship is primarily to protect the child’s welfare and manage their affairs until they reach the age of majority.

Natural Guardianship

Natural guardianship refers to the inherent right of parents to care for and make decisions on behalf of their minor children. It is automatically conferred upon the biological parents by virtue of their parental status.

In most legal systems, both the mother and father are natural guardians of their child unless the court rules otherwise due to specific circumstances (e.g., parental separation or abuse).

Natural guardianship covers a broad range of responsibilities, such as making decisions about the child’s education, health, and general well-being.

Key Differences

Source of Guardianship: Testamentary guardianship is designated in a will by a parent, whereas natural guardianship is automatically granted to the biological parents.

Activation: Testamentary guardianship takes effect only after the parent's death, while natural guardianship is ongoing as long as the parent is alive.

Scope of Authority: Natural guardians have the right to make daily decisions and care for the child, while testamentary guardians take over only in the event of the parent's death and typically manage long-term welfare and inheritance matters.

Example

Testamentary Guardianship: A mother may name her sister as the guardian of her child in her will, in case she dies unexpectedly. After her death, the sister will step into the role of the child's guardian, according to the will.

Natural Guardianship: A father and mother both share the natural guardianship of their child, which includes making decisions about the child's education, health care, and general well-being. This remains in place as long as both parents are alive and capable of caring for the child.