If you have young children you will, from time to time, have thought about what would happen to them in the event of your death. Most people assume that family members would step in to help out, but it can be unwise to assume that families will behave rationally in the aftermath of a sudden death and if no-one has been specifically appointed as guardian, disagreements may arise as to what is in the children's best interests. The risk of disagreement is magnified in cases where a child's parents are divorced or separated.
Appointing a guardian will ensure that the person you choose will have full authority and responsibility for the welfare of your children.
Who can appoint a guardian?
Provided you have "parental responsibility" for a child, you can appoint a guardian for that child.
Parental responsibility
Where a child is born to married parents, both parents will have parental responsibility for that child.
Where parents are unmarried, only the mother will automatically have parental responsibility, but a father can acquire parental responsibility in the following ways:
- By becoming registered as the father on the birth certificate (births after December 2003);
- By entering into a parental responsibility agreement with the mother;
- By an order of the Court;
- If the Court grants a residence Order in favour of the father
Civil Partnerships
- Where a child is born to female civil partners (by IVF or AID treatment received after April 5 2009) both partners have parental responsibility;
Adoption
- An adoption order confers parental responsibility on the adoptive parents.
How to appoint a guardian
A guardian can be appointed by Will.
You can also appoint a guardian by deed or a signed and dated document.
It is permissible to appoint more than one guardian, to act jointly.
Where a spouse or civil partner is to be appointed as guardian of your children from a previous relationship (and for which they have no parental responsibility) you need to consider whether you wish them to remain as guardians in the event of a divorce (or dissolution of the civil partnership). Divorce, annulment or dissolution will revoke any such appointment unless the appointment specifies otherwise.
When will the guardianship commence?
Your chosen guardian will not necessarily be able to act immediately on your death. If there is a surviving parent with parental responsibility, he or she will continue to have full responsibility for the child and it is only on their subsequent death that your chosen guardian will acquire parental responsibility. If parents have appointed different guardians, both will be able to act (jointly) following the death of the surviving parent.
A guardian will be able to act immediately on your death, in the following circumstances:
- If there is no surviving parent with parental responsibility; or
- If you alone had a Residence Order in force with respect to your children at the time of your death.
Will guardians be paid?
It is important that you discuss with your chosen guardians whether they would be able to take on the burden of caring for additional children and also ensure that they are aware of the responsibilities which being a guardian entails.
While your children are under 18, any money they have inherited from you will be looked after by trustees (who may or may not be the same persons as those appointed as guardians). The trustees can release funds to the guardians to be used for the children's benefit (eg living costs, holidays and school fees).
You may decide to leave your guardians a legacy for their own use (which would be in addition to any money provided by the trustees for the children's benefit).
For more information about: Making a Will, Appointing guardians, Children matters
Contact Clive Barnard, Caroline Sturge or Samantha Jago at rhw Solicitors LLP
Tel: 01483 302000
clive.barnard@www.rhw.co.uk
caroline.sturge@www.rhw.co.uk
samantha.jago@www.rhw.co.uk