Guardianship in your Will

What is a guardian?

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) has also died. 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 decisions about their health, schooling and where, and with whom, they will live.

Can a child’s other parent become a guardian?

Mothers gain parental responsibility automatically, 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 (for children born after 1 December 2003). If one parent dies and the other has parental responsibility, that parent will take over responsibility for any children and a guardian would 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 responsibility agreement or obtaining a court order. 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.

Who should I appoint as guardian for my children?

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:

• Do your children know the people you have appointed as guardians?
• Where your children will live – will they have to change location, and will they still be able to see their other family and friends?
• Will the proposed guardian will be able to give your children the love they need?
• Will your children be able to stay at the same school or would they have to move schools?
• Do the guardians have children of their own? If not, would they be happy taking on a different lifestyle that includes children?
• Would your children be able to continue existing friendships and hobbies?
• Do the proposed guardians have similar beliefs, morals and style of living as you?
• Do they have any medical conditions that might prevent them from acting as a guardian?
• Does the guardian have the financial ability to raise your children if your estate cannot cover it?

It is important to note that your chosen guardians do not have to accept the appointment, so, even though the likelihood of them ever having to take on the responsibility is slim, it is vital that you discuss this with them, and they accept the responsibility, before naming them in your will.

How will the guardian pay for my children’s upbringing?

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 gift
• allow the trustees of your will to pay for things such as school fees, clothing etc., or loan money to the guardians to buy a property big enough for them to live in with the children, for example. The loan can be dealt with by way of a charge on the property, which must be repaid to the children in the future.
• leave a letter of wishes that gives guidance on how trustees should use money in your estate to benefit the upbringing of your children (note that this list is not legally binding)

It may be possible for the guardian to apply for the guardian’s allowance, which is a government benefit, as well as child benefit.

Will my divorce affect the appointed guardian?

Not necessarily.  If you divorce, your will is still valid, so if you have appointed a guardian within in, that appointment still stands.  However, if you remarry, your will is revoked so the guardianship you had chosen will no longer be applicable.  You will have to make a new will naming the guardian again.

What if the guardians I have chosen no longer want to act?

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.  If they decide after you have died that they don’t 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 no alternative guardians have been named, the executors will need to apply to the court for guardians to be appointed.  This will mean that the child will need to go into care until a suitable guardian has been appointed.

Can I change the guardians I have appointed?

Yes, it is not unusual to change your mind about who you want to bring up your child if you die.  You may have had different ideas when your child was born compared with when they are ten years old.