Appointing Guardians

How to appoint guardians for your children

Writing a Will gives you the opportunity to lay out your wishes with regards to who you choose to look after your child should you die before they reach the age of eighteen. Your chosen guardian would be responsible for providing a home and daily care and make decisions regarding your child’s welfare, education and health. If you don’t assign a legal guardian, you are effectively allowing the courts to decide who looks after your children and where they are to live should you die while they are still under 18, and until a guardian is assigned, your child could be put into the care of social services. A verbal agreement between family or a friend will not be sufficient to satisfy the court.

Choosing a Suitable Guardian

You can choose whoever you wish to be a guardian, the law, however, stipulates that guardians must be mentally capable for the role, and be over eighteen. Picking a suitable guardian for your child has further considerations apart from choosing someone you trust to have your child’s best interest at heart. Other factors must be considered, such as whether they possess the same fundamental beliefs as you do, what their religious or moral beliefs are; whether their opinions on education, schooling, lifestyle and diet match yours.

It is also important to consider where the guardians live, and whether appointing someone is going to mean your child will need to be uprooted from their community and change schools. Where your chosen guardian lives abroad, you will also need to think about potential problems such as obtaining visas; either for the guardian or your child. It is important to ensure that your wishes are communicated in advance to your guardian. You should have a discussion with your chosen guardian, which can help prepare your guardian for the responsibility should it ever be necessary.

Do Parents Need to be Named as Guardians?

In England and Wales, where the parents are not married, and the father dies, the mother will maintain parental responsibility for the child. However, if the mother dies, the father will have sole parental responsibility only where he has been named on the birth certificate of a child born after 1st December 2003 or there is a Parental Responsibility Agreement in place with the mother.  To clarify your position in relation to a child, speak to one of our friendly Will & Estate Planning Consultants who will be more than happy to advise you on where you stand.

How Many Guardians Can My Child Have?

Most parents prefer to appoint two people (usually a couple) as guardians for their child, however, you can choose up to four people. The more people you choose, the higher the likelihood of conflicts arising with regards to differences in opinion about the child’s care.

It is a good idea to name substitute guardians on your Will, so that if your primary guardians die before you do, or back down from the role, your substitute guardians can take their place. Naming substitute guardians saves you having to change your Will, if your primary guardian dies, or can no longer take on the responsibility.

Dying Without a Guardian: The Court Process

The court will start the process to find a guardian for children of deceased parents by instructing the social services to assess potential guardians. The social services will then provide their findings to the court. The potential guardian(s) will be assessed to see how they interact with the child, and the report will cover how able the person is to support the child and how they plan to ensure that the child is brought up in the way the child’s parent would have wished.

The court must be satisfied that the potential guardian can cope with being responsible for the child and the child must also be happy with the choice of guardian and will make their decision based on what is in the best interests of the child.

I No Longer Wish to Be a Guardian. What Should I do?

If you have been chosen as a guardian and you no longer wish to have the responsibility, you should let the parent(s) know immediately so they can make the necessary changes to their Will. If the parent has already died and you no longer wish to act, you will need to inform the executors of the Will. The executors will then inform substitute guardians, or apply to the court for a new guardian to be appointed where no substitutes are mentioned. This could mean the child is taken into care until a guardian is appointed by the court.

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