Protect your children by appointing a Guardian when making your Will

To be sure that your children will be in safe hands and well looked after should you die, you should give careful consideration to who would be the best person to take care of them, and appoint a legal guardian for them in your will.  A guardian is a person who will have the legal responsibility to look after your children if you die before they are 18 years old, and their other parent (who has parental responsibility) is also deceased or is unwilling or unable to discharge their parental responsibility.  Most people choose one person as a guardian, but you can choose two, for example, if they are a couple. You can also choose a separate guardian for each child if you want to.  Guardians gain parental responsibility, and so will have all of the same responsibilities as you have as a parent with parental responsibility, which includes making very important decisions about their health, schooling and where, and with whom, they will live.

Mothers gain parental responsibility on giving birth, but fathers only gain parental responsibility if both parents were married at the time the child was born or if they are named on the birth certificate. If one parent dies and the other has parental responsibility, that parent will take over responsibility for any children and a guardian does not need to be appointed. If the other parent does not have parental responsibility, it may be possible to name them as the child’s guardian or they can obtain parental responsibility by entering into a parental rights agreement (sometimes known as a s4 Agreement), or by obtaining a court order for parental rights and responsibilities. It is important to note that if a parent has parental responsibility, by appointing a guardian the other parent will not circumvent that and if there was to be a dispute over who would care for the child, a court application would most likely be necessary. Only a parent with parental responsibility can appoint a guardian. If the father does not have parental responsibility, and the mother dies, having appointed a guardian, the guardian would take responsibility for the child – even if he/she was living with their father at the time.  The father could make an application to court to continue care of the children and, if there was a dispute about who would care for the children then this may have to be resolved by the court.

If you want to be sure that someone you trust will look after your children if you die, you need to decide who that should be by appointing a guardian in your will. If you don’t appoint a guardian, the courts will decide who will look after your children in the event of your death.  It is not guaranteed that this will be the person/people you would have chosen, so it is far better to make that decision yourself. Your children could also be taken into care temporarily if you die and you have not appointed a guardian.

Who should I appoint as my Children’s Guardian?

This is something you need to consider carefully.  Many people choose their own parents – the children’s grandparents – but this might not be appropriate if they are old, for example.  The children’s aunties or uncles are also a common choice, but close friends could be a better one.  A guardian has to be an individual – it cannot be a company – and the individual must be at least 18 years old.  Try to consider who would best meet the needs of your children.  You could think about their bond with your child, the practicalities of where the children will live and attend school, who will be best able to give the love they need, how would the children fit in with other children in the guardian’s family, whether the guardian has similar beliefs and moral to your own, do they have the means to support your children. Whilst it's important to note that your chosen guardians do not have to accept the appointment, it is vital that you discuss this with them in advance, and they agree to accept the responsibility, before naming them in your will.

If you have been granted parental responsibility for your stepchildren, you can appoint guardians for them in your will.  However, if you die and the children’s other parent is still alive and they have parental responsibility, they will take over responsibility for the children, even if you have named a guardian. If you do not have parental responsibility for your stepchildren and your partner (the children’s parent) dies, the children’s other parent (if they have parental responsibility) will become responsible for the children – even if you are named by your partner in their will as a guardian their children. It is generally a good idea to have different people to the guardians named in your will as executors.   That is because executors often become trustees,  and will need to manage funds on behalf of your children until they are old enough to receive any trust funds.

How do I make the appointment of the Guardian in my Will ?

You can name your chosen guardian(s) in your will. The appointment must be made in writing, signed by the person making the appointment and dated. If you have already made a will before you have children and all other aspects of your will remain the same, you can appoint guardians using a codicil. If you have not appointed a guardian and your children are staying with a grandparent, other family or friends at the time of your death, it is likely that they would stay there on a temporary basis.  An interim court order could be sought to formalise this.  If this is not a suitable arrangement, the court could grant the local authority temporary parental responsibility.  The court would then make an assessment as to what is best for the children and would formalise arrangements in either a care or supervision order. Usually, guardianship becomes effective upon the death of the second parent.  If a parent with parental responsibility survives, the guardianship will not take effect.  It ends automatically when the child reaches 18 years old.  If both parents have parental responsibility, but both choose different guardians for their children (for example if they are divorced), both guardians will take up the responsibility when the second parent dies and they will have to agree between themselves how the children will be brought up.

A guardian has no responsibility to bring up a child using his or her own resources.  There are several routes you could consider to ensure that the guardian can afford to bring up your child in a way that you would choose.  For example, you could leave a gift of money in your will to the guardian as a thank you for looking after your children – this is known as a pecuniary legacy, you can create a Trust and direct your trustees to pay for things such as school fees, clothing etc., or even loan money to the Guardians to buy a suitable property for the children, the value of which will be retained for their future benefit. It may be possible for the Guardian to apply for a guardian’s allowance, which is a government benefit, as well as child benefit.  It is not unusual to change your mind about who you want to bring up your child if you die. If your chosen guardians let you know before you die that they no longer wish to act as guardians, you will need to change your will. This can usually be done by adding a codicil to your will.  If they decide after you have died that they do not wish to be guardians, they will need to speak to the Executors of the will who need to appoint alternative or substitute guardians (if such guardians have been named.

If you wish to consider appointing guardians in your will,  please contact our private client solicitors now.  We will be able to guide you through the process and help you gain the peace of mind that your children will be looked after by people chosen by you if you die.