Appointment of guardians
For busy parents of children making a Will is not usually high on their agenda. These parents will often have in mind a person they would wish to look after their children but very few take the next step and put a Will in place appointing guardians.
By appointing guardians, it gives the parents peace of mind to know their wishes have been formalised.
A guardian is a person appointed for children under the age of 18 who takes on the daily care if both parents, with parental responsibility, have died. Parental responsibility is defined as all the rights, duties, powers, responsibilities and authority which, by law, a parent of a child has in relation to that child and his property. Only a parent with parental responsibility for a child can appoint guardians. The situation can become more complicated depending on the parents’ circumstances and it is advisable to take specific legal advice if your situation is more complicated.
Guardians must be appointed in writing. This is usually dealt with by Will since the appointment will take effect on their death, that is unless there is a surviving parent who has parental responsibility for the child. For example, if a mother appoints a child’s grandparent as the guardian for their minor child, the appointment will not take effect if the father of that child is still alive and has parental responsibility. It is therefore sensible for parents to appoint the same guardian which will take effect only when the second of them shall die. This is a complex area of law and, as mentioned above, it is important to take advice for your specific family circumstances.
Whilst it is easy for lawyers to get caught up in the legal practicalities, it is important for parents to consider their hopes and wishes for the children for the future. They can discuss these with the proposed guardians or preferably record these in a letter of wishes. This can be stored with the Will and updated as the child grows in age and character.
If you require any advice about the appointment of guardians within a Will please contact one of our specialist lawyers in the Private Client Department. For issues surrounding child arrangements and parental responsibility, please contact a member of our Family Department who will be happy to help.
Angela Ireland is a chartered legal executive in the private client team at Barker Gotelee, Ipswich Solicitors.