InsightsInsight - Family and Divorce, Wills and Probate - UPDATED: February 10, 2022 12:00 am
Guardianship of young children in Wills
Our fact sheet explains how appointing a guardian for a minor child under the terms of a will can ensure the care and protection of your child if the worst should happen.
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What is a guardian?
If you have children under the age of 18, you will need to appoint a guardian in your Will. The guardian you appoint will look after your children in the event that you pass away before they reach 18.
The appointed guardian will be given parental responsibility for your child and will have the same rights as you when it comes to your child’s health, welfare and education. An appointed guardian must always act in the child’s best interests.
Who can be a guardian?
You can appoint anyone you wish to be a guardian for your child, as long as they are over the age of 18. This is commonly a family member or a close friend, but it can be anyone else you feel is appropriate to look after your child in the event of your death.
We would encourage you to appoint more than one guardian, this can safe guard in case your chosen guardian is unable or unwilling to act.
What happens if I do not appoint a guardian?
If you do not appoint a guardian to look after your child and no other surviving person with parental responsibility exists, then the court will decide who to appoint as guardian for your child.
This may very well not be someone your child knows or is close to and could lead to disputes amongst your family.
Guardianship clauses in a Will
For married couples with mirror wills, the guardianship clause only comes into effect on the death of the second parent.
It is important to think carefully about whether you would like the guardian appointed in your Will to be an Executor / Trustee of the Will as well. This can be helpful as your guardian will know the day-to-day requirements of your child and will be able to apply money for their use. However, some are concerned that the guardian may be more sensitive to the child’s needs and it is sensible to have a person less involved to control the money.
Usually, the surviving parent will have parental responsibility for the child. For unmarried parents, if the child was born after 1 December 2003, a father will automatically have parental responsibility if his name is registered on the birth certificate.
If the deceased parent appoints a guardian in his or her will, then this appointment will not take effect until the surviving parent dies. This can be quite worrying if the surviving parent has little involvement in your child’s life or if your child is close to your chosen guardian and you would rather that he or she stays with them.
However, there are options available. Any guardians appointed under your Will will have standing to apply to the court for a Child Arrangements Order after your death. A Child Arrangements Order will state with whom a child is to live.
If this is something you are concerned about, we would advise leaving a Letter of Wishes alongside your Will explaining why you feel your child should live with their guardian, instead of the person who has parental responsibility. This will assist with the guardians application for a Child Arrangements Order.
To draft your Will and appoint your chosen guardians, please contact Brachers’ Private Client team.
Download the file on Guardianship for children fact sheet.
This content is correct at time of publication
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