Guardianship
If you are a parent and your children are under the age of 18, we strongly advise that you make a Will to appoint Guardians to take care of your children in the event of your death.
What is a Guardian?
Guardians are the people you choose to appoint to take legal responsibility for your children who are under the age of 18 at the date of your death.
Who can be a Guardian?
Any adult who you wish to choose can be a Guardian to your child or children. This may be a close family friend whom your child or children may already have a close bond with or, a family member such as a grandparent, aunt, uncle or even a sibling who is over the age of 18.
It is important to consider beforehand the relationship your child or children has with the person you intend to take on the responsibility of their continued care and well being.
Can I appoint more than one Guardian?
Yes, you can appoint as many Guardians as you wish. However, if numerous Guardians are appointed, there may be a dispute as to which Guardian your child or children lives with. If you do wish to appoint more than one Guardian, it would be wise to state in your Will which Guardian you would prefer your child or children to live with.
What happens if I don't appoint a Guardian?
The court will decide who looks after your children - you will have no control over this. You should not assume that your children will automatically go to live with family or friends.
What does a Guardian do?
Your chosen Guardian will have a duty of care to your child or children for their care, health and general well-being and ensuring that their current standard of education is maintained.
When does the appointment take effect?
Unless there is no other person with parental responsibility, the Guardianship appointment will take effect immediately on your death.
What is parental responsibility?
A person who has the legal responsibility for a child or children.
A mother automatically has parental responsibility under law, as does a father who was married to the mother of his child or children at their birth.
A father who was not married to the mother of his child or children born after 1st December 2003 will have parental responsibility only if his name is registered on the birth certificate. However, parental responsibility may have been acquired in a number of other ways (marrying the mother and having the birth re-registered as a child of marriage, making a parental responsibility agreement with the mother, obtaining a parental responsibility order from the court, obtaining a residence order from the court; or becoming the child's Guardian on the mother's death).
A father who was not married to the mother of his child or children born before 1st December 2003, will not automatically have parental responsibility, even if his name appears on the birth certificate. Parental responsibility must be obtained by either marrying the mother and having the birth re-registered as a child of marriage, making a parental responsibility agreement with the mother, obtaining a parental responsibility order from the court, obtaining a residence order from the court or becoming the child's Guardian on the mother's death.
Example
Ben and Amy are the parents of Alfie who was born on 5th September 2002. Ben and Amy are not married but Ben's name appears on Alfie's birth certificate. Ben does not automatically have parental responsibility for Alfie.
If Alfie was born after 1st December 2003, Ben would automatically have parental responsibility for Alfie as the law now states that unmarried fathers have parental responsibility if their name is on the child's birth certificate.
If Ben and Amy were married at the time of Alfie's birth, Ben would have parental responsibility for Alfie, even if his name did not appear on Alfie's birth certificate.
So will the child's surviving parent automatically become their Guardian?
A child's surviving parent will usually become their Guardian provided the surviving parent has "parental responsibility" under the law contained in the Children Act 1989.
Where both parents have parental responsibility, the appointment of a Guardian will only come into effect when both parents have passed away. It is therefore important that the parents with parental responsibility appoint the same Guardians.
Do I need to let the Guardian know they have been appointed?
You should always seek consent before appointing a person as a Guardian under your Will.
