Guardianship

Appointing Guardians for your Children

You should consider who will be responsible for your children who are still under 18 at the date of your death. It is irresponsible not to do so!

Where do I start?

Anyone who has parental responsibility for a child may appoint one or more individuals to be that child’s guardian. The appointment:

  • must be made in writing, dated and signed by the parent
  • need not be by Will, but a clause in a Will is sufficient
  • can be revoked in writing, provided the revocation is signed and dated by the appointer even if the original appointment was in a Will. (Usually other changes to the Will would have to be made more formally by Codicil or
    by another Will).

Effect of Appointment: On Married Parents

The appointment takes effect on the appointor’s death, provided that there is no surviving parent with parental responsibility for the child at that time.

If on the appointor’s death there is someone with parental responsibility the appointment generally takes effect only on the death of that person (unless there was a sole residence order in favour of the appointor in force at death).  If both parents have appointed different people as guardians, both (or all) appointees will share parental responsibility. In normal cases it is clearly better to avoid such a situation if possible.

Effect of Appointment: On Unmarried Parents

An unmarried father does not have parental responsibility unless he acquires it by court order, or by formal agreement with the mother, marries the mother, or is listed on the child’s birth certificate (from December 1st 2003). The court retains overriding jurisdiction over the care of minor children, which could be relevant if there is an unresolved family dispute.

Practical Considerations

  • Clearly it is preferable for both parents to appoint the same people.
  • Who? – perhaps a couple with experience of bringing up children, members of the family or friends who are already well known to and liked by the children.
  • Consult with the children, if they are old enough to find out their view.
  • Consult with the proposed guardians in advance to ensure that they are willing to act.
  • Consider the location of guardians. Do you wish for your children to be uprooted from their local school, friends and generally what they know?

Financial Considerations

Usually the Will sets up a trust fund to provide for the needs of the children e.g. education, holidays, etc.

You should consider whether the guardians will manage the trust fund or whether this responsibility should be given to someone else or shared.

The circumstances in each case will be different:

  • The guardians could be appointed trustees, jointly with perhaps a solicitor.
  • The guardians will be best placed to know the needs of the children however the guardians may be regarded as the advocates of the children and the Trustees as the judge of any conflicting claims!
  • On balance it is probably sensible to separate the functions of guardians and trustees so that there is at least somebody supervising, checking and controlling what money the guardians are drawing on behalf of the children.

This information note is for general guidance only and based on the legal position to date. You should not act or refrain from acting on the basis of this note and should discuss your individual situation and requirements with us.

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