InsightsInsight - Family and Divorce, Wills and Probate - UPDATED: January 22 2024
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. However, care should be taken as to who you appoint in case there are disagreements regarding the child’s upbringing. It would be advisable to discuss the appointment with the individual, to make them aware of the role and responsibility they would be taking.
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.
The person you appoint as a guardian is responsible for the child’s welfare only. The individual responsible for the finances will be whoever you appoint as Executor/Trustee within your Will.
It is important to consider the financial burden that a child can have when appointing a guardian. The individual you appoint may need access to funds to support your child and you should therefore ensure there is provision in your Will to allow this. Our specialist team can ensure your Executor/Trustee has flexibility with releasing funds if they are required.
It can be helpful to have the same individual act as both Guardian and Executor/Trustee. This gives them complete control in your child’s life. Many take the view that it is helpful for the Executor/Trustee controlling the money to have insight on the child’s daily life and needs.
However, there can be concerns that the guardian may be more sensitive to the child and their needs. Therefore, it can also be sensible to have a person less involved with your child to act as Executor/Trustee and 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 you are separated but are both named on your child’s birth certificate, then you will both have parental responsibility. There are other ways in which you can obtain parental responsibility, so please speak to our specialist team if you are unsure as to whether you have this.
If the deceased parent appoints a guardian in his or her will, then this appointment will not take effect until both parents have died, regardless of the separation. 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 can be stored with your Will for additional protection, but of course, can be updated as long as you have the mental capacity required to make a Will. This will assist with the guardians application for a Child Arrangements Order.
In the cases of blended families, careful drafting is required. If both parents have prepared Wills appointing different guardians, then generally the appointed guardians will act together once both parents have died. The court would be able to resolve any disputes as to guardianship if required.
Further support and guidance
If you do not have a Will, or your Will was prepared before your children were born, then it is important to prepare a new Will. Please contact Brachers to meet with our specialist Private Client Team and discuss the best way to safeguard your child’s welfare and finances in the event of your death. 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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