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Check out this helpful guide to Guardianship and Wills produced by When thinking about making a Will, it tends to be in the context of leaving our property and possessions to our loved ones, friends, or charity. However, a Will is a very flexible document and can achieve far more than that.
For example, if you have minor children, their welfare in the event of the worst happening will be of paramount concern. And your Will is the best way to provide certainty for their future by appointing one or more guardians. Providing that certainty will also help your children at what is inevitably a challenging time. In addition, it reduces the possibility of conflict within the wider family.
What is a guardian?
A guardian is someone named in your Will as the person you would like to have responsibility for your children if both parents with parental responsibility die before any child reaches the age of 18.
Who has parental responsibility?
Legally, a mother automatically has parental responsibility for a child from birth. In England and Wales, a father usually has parental responsibility if:
- he’s married to the child’s mother at the time of birth; or
- he’s listed on the birth certificate.
A father without parental responsibility can acquire it by applying to the court.
What happens if you don’t appoint guardians in your Will?
Failing to appoint guardians in your Will means that the court must decide who should look after your minor children on the death of both parents with parental responsibility. Until the Court appoints a guardian, your children will be under the care of social services. It’s a common misconception that a verbal agreement with friends or family will suffice in place of a formal appointment in your Will.
Guardianship and Wills
Naming one or more guardians in your Will means their appointment is automatic on the death of both parents with parental responsibility.
Choosing a guardian
Anyone can be appointed a guardian if they are 18 or over and have mental capacity. However, a person can decline their appointment, so you should always discuss it with them first.
In some cases, your choice of guardians will be obvious. But there are often a variety of considerations in choosing a suitable person or persons. For example, do they share your values and beliefs? What are their opinions on matters such as education, diet, and lifestyle? Age is also a significant consideration. Older people, perhaps grandparents, may readily agree to step into your shoes, but would their appointment be fair to them or, indeed, to the children? There’s also the greater possibility of them predeceasing you.
Another consideration is where they live. Will appointing a particular person mean your children changing schools or having less contact with other family members?
Communication with your chosen guardians is crucial. Discuss with them the issues important to you. We also advise parents to set out those issues clearly in a side letter stored with their Will.
How many guardians should I choose?
Many parents prefer to appoint two people, typically a couple, as guardians. However, you can choose just one or as many as four. But the more people you choose, the higher the risk of conflicting opinions regarding the children’s care and upbringing.
If possible, naming a substitute guardian is a good idea. Doing so covers the possibility of your primary guardians dying before you or deciding to back down. Should that happen, there is then no need to change your Will.
What if I cannot decide who to appoint as a guardian?
Guardianship and Wills can prove troublesome. As a practitioner, I regularly encounter couples putting off making Wills simply because they cannot decide or agree on suitable guardians. In such cases, my advice tends to be to choose one person or a couple who live together, with a side letter of wishes setting out how they wish their children to be cared for and who they want them to have regular contact with, perhaps from the other side of the family.
If they can also decide upon a substitute guardian, so much the better, but if not, we can keep the situation under review. The important thing is to appoint one person at least.
In a recent matter, the only people my clients considered suitable were the mother’s parents. Fortunately, those grandparents are relatively young, healthy, and willing to be appointed. But should one or both grandparents predecease the parents or they become ill or infirm, we can revisit the appointment. And should a substitute occur to the parents, we can draft a short codicil to confirm their appointment.