Appointing a Guardian
Why appointing a Guardian is vital
When making a Will most people focus on money and who will inherit their estate on their death. However, if you have children who are minors (under 18 years old), it is likely that the parents’ greatest concern is their children’s welfare. This article sets out why it is vital for parents to nominate who they want to be the Guardian of their children if they die.
What is a Guardian?
A Guardian is the person legally responsible for looking after your children if both natural parents die before the child in question turns 18 years old. It is important to note that if a child has a surviving parent, then that living parent automatically takes parental responsibility for the children.
Why it is a vital appointment?
If you do not appoint a Guardian, it will be left to the Courts to decide what is best for your minor children.
What does a Guardian do?
All parents should nominate a Guardian who will have “parental responsibility” for the children until they reach 18 years old. This means that the Guardian has responsibility to provide the basic needs for the minor children, such as a home, and the Guardian can:
make decisions about the child’s upbringing
get unpaid parental leave
choose the child’s school
agree to the child’s medical treatment
look after the child’s finances and property
apply for a passport for the child
stop the child being taken abroad without the Guardian’s permission
How to appoint a Guardian?
A guardianship appointment only takes effect if there is no one else alive with parental responsibility for the child in question.
The method of formally appointing a Guardian is similar to the requirements of putting a Will in place, meaning that the appointment needs to be in writing and signed in the presence of two witnesses. Therefore, many parents incorporate their choice of Guardian within the terms of their Will, which states that the guardianship appointment only takes effect if both parents have died.
How do you choose a Guardian for your children?
It is important to think practically about the appointment of a Guardian and to consider who, other than the natural parents, would be most suitable. Sometimes there is an obvious choice but, in many cases, it is not so easy and this question can be a tricky conversation that causes tension between parents.
Some options to consider are:
Grandparents: Younger parents typically choose their own parents to look after their children, although this can lead to reflection on whether they are happy with the upbringing they had themselves.
Siblings: It is common to think of siblings as Guardians but if there are multiple siblings on both sides it is important to think carefully about which you choose.
Close friends: It may be that there is a close friend who would be happy to act as Guardian and who would result in the least amount of change for your children.
You should also consider the following points:
Existing bonds with your children: It is important to consider the relationship between the child and the proposed Guardian and how well they get on.
Existing situation: Does the proposed Guardian have their own children and is their situation stable? If so, do you approve of the way that they raise their children? Do you agree with their beliefs and morals and could your children continue their favourite hobbies?
Age of the Guardian: Whilst a grandparent may help with childcare now, in the years to come they may not be able to manage with teenagers in their old age.
Responsibility: Especially when considering siblings, it is important to acknowledge that parenting is not for everyone and the sibling should be asked if they want the responsibility.
Geographical location: Does the proposed Guardian live locally? If not, it is important to think about the upheaval of relocation on the child, and the impact of possibly moving school and making new friends at the same time as grieving for their parent.
Financial impact: Money that you leave your children will be held on trust by Trustees (who may or may not be the Guardian). The Trustees should be able to release funds to the Guardian to be used for the child’s benefit (eg: living costs, holidays and school fees).
The most important thing is not to ignore the issue. Although choosing a Guardian might be a difficult decision, the worst outcome is to do nothing and leave your families arguing over what is in your child’s best interests. No one knows what the future holds, but it is important to plan for the worst and to protect your loved ones.
Emma’s thoughts:
Include Guardian appointments in your Will: All parents should have a valid and up-to-date Will specifying who they want to look after their children if the natural parents die before the children reach 18 years old.
Think carefully about who you appoint as guardians: Take into consideration all the factors above and think practically about how it will work out.
Provide additional guidance for the guardians: A separate document or letter of wishes should be prepared to let the guardians know your wishes on important matters such as schooling, health care matters, finances etc.
Make the best decision for now: As long as you retain capacity, you can change your Will as your children grow older and as the circumstances of the Guardian change, but it is important to have your current wishes written down.
Speak to the Guardian: make sure that they are comfortable with acting as Guardian if the need arises and ensure that they ask all the questions they may have about the role.
DO IT NOW! If there is no valid appointment of Guardian there is the potential for arguments amongst family members or the need to apply to the Court.
The most precious jewels you will have around your neck are the arms of your children – make sure you provide for them if you are not here.