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Appointing a Guardian for your minor children – What do you need to know?

If you have children under the age of 18, then it is important that you consider appointing a guardian for them.  An appointment does not need to be made in a Will but many parents do choose to appoint guardians in their Wills.  Understandably, the decision as to who to appoint can be a difficult decision and we are often asked to provide advice to clients as to guardianship provisions. We outline below the law in relation to guardians and, most importantly, what happens if a guardian is not appointed for minor children.

Who can appoint a guardian?

A parent with parental responsibility can appoint a guardian.  A mother automatically has parental responsibility for a child when the child is born, as does a father who is married to the mother or in a civil partnership with the mother.

However, if a father is not married to the child’s mother he does not automatically have parental responsibility but may acquire it by other various methods.  There are also methods whereby step-parents can acquire parental responsibility.

When does a guardianship appointment take effect?

An appointment of a guardian only takes effect on the death of the person who made the appointment if there is no surviving parent with parental responsibility for the child.

Therefore, the appointment only takes place on the death of the last surviving parent with parental responsibility. It is for this reason that it is of vital importance that parents should co-ordinate their guardianship appointments.

The simplest format to follow is for both parents to appoint the same guardians, and for the clause to be drafted so that only the appointment in the Will of the second parent to die should take effect. This means that the surviving parent is able to change the guardian they have appointed, without risking the complicated situation whereby two guardians are separately appointed in each parent’s Will.

What happens if I appoint two separate guardians?

It is important to be mindful that the two separately appointed guardians must try to agree on all matters relating to the child’s upbringing and education. If they disagree on important issues, they will have to refer to the court for a decision.

Other factors to consider

It is possible to draft more complex guardianship provisions which allow for the appointment of a guardian to take place only if certain conditions are satisfied. These conditions could be that a guardian has to be of a certain age, or married.

It is also possible to appoint substitute guardians, in case the first choice of guardian dies, or does not want to take on the role of a guardian.

What happens if I do not appoint a guardian?

If both parents die without appointing a guardian in their Will, then only the court can appoint a guardian. This process is often stressful, and takes place at the same time that the family of the minor has to cope with the distressing situation of deaths within the family.

What should I do next?

It is important to ensure that there is a valid Will in place which includes provision for appointing a guardian for any minor children.   Any appointment should be reviewed from time to time (as should your Will) to ensure that the chosen guardian remains appropriate in your current circumstances.  It is not at all unusual for the guardian to be changed as circumstances change.

If you have any questions in respect of appointing guardians or parental responsibility then please contact Harriet Page.


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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