What is a guardian?

If you have children under the age of 18, you may want to consider appointing a guardian for them in your will. A guardian takes parental responsibility for children if both parents pass away. By the age of 16, around 1 in 20 children will have experienced the death of one or both of their parents. Including a guardian appointment in your will, allows you to choose someone you approve of to take care of your children, giving you peace of mind.

Lots of people think that custody of the children automatically goes to their partner, mother or sister. Unfortunately, this isn’t how it works. If you fail to appoint a guardian, the Court will typically have to appoint a guardian, and this may not be the person you would have chosen yourself. 

Who can appoint a guardian?

A person who has “parental responsibility” for a child can appoint a guardian for the child in their will. Parental responsibility means all the rights and duties you would expect a parent to have with decision making for that child. A child’s mother always has parental responsibility for her children. If the parents of the child were married when the child was born, they will both automatically have parental responsibility.

 If the parents were not married, the mother automatically has parental responsibility but the partner can acquire it in a number of circumstances:- 

• He marries the mother. 

• He is registered as the father on the child’s birth certificate.

•  He enters into a parental responsibility agreement. 

How do you choose your guardian? 

Choosing guardians isn’t an easy task. If it helps, draw up a list of people you are considering and use the following:

• Values – are there any cultural or religious values? 

• Age/health – are close family members young and healthy enough? 

• Geography – how far away do they live, can the children remain at their current school? 

• Other children – ages, will your children “fit” in the family?

• Responsibility – how capable are they to care for and nurture your children? 

• Does your child know and like them already? 

Potential Problems

 A potential issue arises if parents choose separate guardians, as the two guardians must agree on all matters relating to the children. In the event of disagreement, the matter would have to be referred to the Court. To avoid this, it is highly recommended parents discuss and agree on a legal guardian together even if parents are no longer a couple. 

The effect of divorce

 Divorce does not automatically cancel a will but if you marry again, the whole will is revoked (cancelled). 

Financial Provision 

It is also important to consider how you would like your assets to be managed on behalf of your children. The use of a trust can be beneficial to protect the capital until your children are older ie 25 years. 

Next Steps

 If you have a child under the age of 18 years it is an essential part of planning that you create a will. For further help and advice please contact Andrea Beesley-Hewitt at Hegarty Solicitors on 01780 750952 or email andrea.beesley-hewitt@hegarty.co.uk.

Key Points: A will is a very important document for protecting your family’s future Including a guardian appointment in your will, allows you to choose someone you approve of to take care of your children

For more information: www.hegarty.co.uk