Have you appointed a Guardian for your Children?

There are many reasons why will want to make sure that they have a Will in place. One of the reasons cited for making a Will related to the issue of appointing guardians to care for children (under-18s) in the event of both parents’ deaths.

Helen Smith Wills Probate Solicitor
Helen Smith, Wills and Probate Solicitor

In the unfortunate circumstance of both parents’ passing away, the care of any minor children that have survived them is paramount. In such an instance, it is vital to consider carefully who will become the child’s or children’s legal guardian. Parents can choose guardians by way of informal statement, but this is unlikely to be binding in the face of a challenge and runs the risk of being lost over the passage of time. Parents may consider, therefore, appointing their choice of guardians in a will (‘testamentary guardians’).

Where one parent survives the other, there may be an assumption that the surviving parent will automatically be granted care of any minor children. However, this is not always the case. On the death of one parent, the issue of whether the survivor has parental responsibility for the children will be examined. Generally speaking, parental responsibility is granted automatically (following an update in the law in 2013) to the biological father of a child who was, at the time of the child’s birth, married to the child’s biological mother. An unmarried biological father can be granted parental responsibility for his children if his name is recorded on the child’s birth certificate. The position is more complicated for parents in civil partnerships or same-sex relationships, where there may only be one biological parent. Parental responsibility for the non-biological parent in that situation can only be obtained by way of a parental responsibility agreement or order.

The law governing the appointment of guardians is found in the Children Act 1989. The issue of parental responsibility is important because only a parent who has parental responsibility can appoint guardians for their children. Therefore, where there is doubt, parents should seek advice to ensure that, where possible (and in agreement with both parents), this will not cause any potentially-unforeseen issues on the death of the parent with parental responsibility, who may not have appointed their partner in their will.

Once satisfied that parents are able to appoint testamentary guardians, the choice of who will be the most suitable person or people to act in that role will be important. It is natural to consider grandparents. With the passage of time, however, this choice may not be appropriate. Age may mean that grandparents are unable or incapable of caring for children. Certainly, grandparents can (and perhaps should) be considered as the primary choice, but it is advisable to consider the appointment of substitute guardians who can take on the role in the event that grandparents are unable to do so. This way, the choice that parents make as to who they would want their children to live with in the event of their deaths can be followed. The alternative may mean children being caught up in the care system. Potentially they could end up being temporarily placed into the care of the local authority whilst the Court decides who should be legally appointed as their guardian.

It is perhaps an obvious thing to say, but it is equally important that those chosen as guardians are aware of their potential appointment and are happy for it to take effect. Otherwise, this can present a major difficulty and upheaval for children precisely when they need comfort, reassurance and stability. Brothers, sisters, aunts and uncles and close friends may all be considered. Where two people are appointed, such as a couple, the appointment will be joint, which will mean that, unless specified, where only one of two chosen guardians has survived the deceased parents, the appointment may fail.

A guardianship clause in a will can also allow parents to make financial provision for those chosen as guardians to help in caring for the needs of their orphaned children. This can often assuage parents’ concerns about the financial impact on family or friends placed in this situation. Parents can leave authority for guardians to access funds held in trust for minor children and instructions as to how and when those funds can be utilised (for health, welfare, education and maintenance). Parents sometimes consider leaving a cash legacy for guardians outright in gratitude for taking on the responsibility for continuing to bring up children after their deaths. This will depend, however, upon the size of the estate and this can be discussed with a solicitor when considering what provision could be made.

Many parents with young children may not consider it is relevant to them to make a will. However, even if the nature of assets is such that the financial provisions in a will can otherwise be simple, the lack of guardianship appointment can have an enormous impact. In circumstances where children will need stability, comfort and consistency, parents can make the choice to appoint those that they would trust to provide that care. The alternative is to leave things to chance and uncertainty, and the opportunity to plan for the futures of a child or children when both parents are no longer around will be lost.

Lovedays Solicitors can help and advise on the issues surrounding guardianship, not only in respect of preparing a Will, but also in relation to issues of parental responsibility.

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