The role of a guardian is a very important one if you have children. Should you die without making a Will or if you do not appoint guardians in your Will, your children could be placed in care until the court appoints official guardians to look after them. This could take months and would obviously result in distress for your children and other members of your family. Appointing guardians can safeguard against this happening.
Remember to request that your appointed guardians also make a Will themselves to further safeguard the future of your children.
Who should act as guardians?
Friends or Family?
You will need to consider who should be the guardians of any children under the age of 18 years who may survive you. The law has certain requirements particularly where the parents are unmarried or have divorced or separated.
Assuming that either parent has the power to appoint a guardian or guardians on their death, it is usual for such appointments to take effect on the death of the second parent.
The normal choice is to appoint family members, particularly where very young children are involved. As children grow the appointment of friends may be more appropriate as they are more likely to share your lifestyle and in these modern times live nearer than your family.
It is usual (but not essential) that the same persons are appointed guardians of all the testator’s minor children. When the guardians are to act only after the death of the surviving parent it is desirable that each parent should appoint the same persons to act as guardian.
It is, of course, important that the testator should obtain the consent of the proposed guardian before making the appointment.
How many Guardians?
There is a danger where the appointment of family is being considered to appoint a ‘committee’ of all the grandparents or brothers and sisters. This has its obvious disadvantages in that the most important issue, the wellbeing of your children, may at worse get overlooked and at best be difficult to manage. It is best to limit the maximum number of guardians to two and it is preferable that they share a home as partners. Thus your children will become part of a familiar and stable environment at probably the most difficult time of their lives.
By all means appoint substitute guardians as this will ensure continuity if circumstances change.
The role of the guardian is a very responsible one and should not be entered into lightly. There will be financial, social and emotional implications taking on such a vast role and the matter should be discussed in detail between the Testator and the appointed guardians.
Many parents will provide financial support for their children in the event of their death and although it may seem insensitive to question them about this, it is a factor in making your decision.
You may be able to claim child benefit and receive a guardian’s allowance in the event that both parents are deceased. Where one parent is alive and you are still called upon to act as guardian the situation will obviously be more complicated.
There are circumstances under which the guardian will be called upon when both parents are not deceased in cases where:
A surviving parent is unable to perform their role because they are overseas, in the army, in prison, disabled or mentally incapacitated, or after the death of the first parent, or they just refuse responsibility.
A couple are separated or divorced and just one of the parents die. The guardian will act with the surviving parent and should disputes arise they will have to be settled by the court. The surviving parent is still considered the statutory guardian.
It is normal for the financial management to be separated from the day-to-day upbringing of children. Whilst the guardians have the daily responsibility it is better for the financial control to be handled by someone different, normally the trustees of your estate. The two tasks demand different skills that may not always be found in the same person. It also means that the trustees, the guardians and, when they are old enough, your children, can share what can be difficult decisions.
In your Will, where your children are underage and are to benefit from your estate, you should nominate them as the beneficiaries. In no circumstances should you nominate the Guardians – as mentioned above, the money will be held in trust, and will be controlled by the trustees for the benefit of the children.
The appointment of testamentary Guardians for children allows you to decide who should be responsible for your children’s welfare, maintenance and education, and how these should be funded if both your deaths occur while any child is under 18 years of age.
Nb. The expression ‘testamentary guardian’ merely indicates that the guardian has been appointed by a Will.
There is no legal reason why you cannot appoint the same people as executors, Trustees and Guardians if you wish, but you should be aware that there is a potential conflict of interest in that the trustees are responsible for advancing sums of money held in trust to the Guardians to help with guardianship duties. However, if you have absolute trust in the people appointed then do not allow this to concern you.
Do consider factors such as the age of your Guardians, where they live in relation to you, (would children have to move school etc.), how close is the relationship between your Guardians and children now, and do your Guardians know and share your views on how your children should be raised and educated etc.?
Duties of Guardians
- you may be appointed to act jointly with guardians. If called upon, you may already have agreed which part of the child rearing role you will undertake – or you may need to decide this at the time with the other appointed guardians
- the surviving parent usually assumes full custody of minor children if the parents were married. Even if the parents were divorced the surviving parent is normally entitled to resume full custody of minor children; however this right will not necessarily be exercised – divorced testators may still choose to name friends or relations as the first choice for guardians. Unmarried fathers do not assume automatic custody rights unless a parental responsibility agreement is in place
- the ultimate decision on who will act as guardians to minor children rests with the local social services. Naturally, they will try to abide by the wishes expressed in a legally valid Will whenever possible
- guardians may also be appointed as executors and trustees in the same Will. It is useful if at least one guardian is also appointed to be an executor and trustee so that funds can be advanced most conveniently when required
- guardians require the maximum flexibility for living arrangements and the use of funds. All normal requirements can be catered for with a comprehensive selection of Trustee Powers which should be included in a professionally drafted Will. Whatever is informally agreed with the parents at the time of the appointment, guardians should not commit themselves to specific arrangements which they may not be able to fulfil in the future
Further Legal Information on Guardianship
Appointment of Testamentary Guardians
The appointment of guardians and the rights they have are governed by the Children Act 1989, s5. A guardian can only be appointed in accordance with that section. A parent with parental responsibility may appoint a guardian by Will or by a document which he dates and signs and which provides that the appointment only takes effect on his death. The appointee will become the child’s guardian if, at the death of the testator:
A. no parent with parental responsibility survived him; or
B. there was a residence order in his sole favour relating to the child.
If neither of these conditions is fulfilled, the appointee will not automatically become the child’s guardian but, as he has parental responsibility, he will be entitled to apply to the court to be appointed guardian.
The appointed guardian can appoint a successor. It is, however, unnecessary to make express provision in the Will because the Children Act 1989, s5(4) enables a guardian to appoint another individual to take his place in the event of his death.
Whether guardians should be trustees depends on the circumstances of each case. There are arguments for and against. The guardians are best placed to know the needs of the children and have the task of providing for those needs. On the other hand, the guardians may be regarded as the advocates of the children and the trustees as the judges of their conflicting claims. The problem is particularly acute when the residue is held on discretionary trusts for the children and, in that case, a sensible solution may be to appoint one of the guardians and, say two professional trustees.
Without prompting, clients rarely contemplate the appointment of testamentary guardians but invariably accept that such an appointment is highly desirable if both are to die while they have a child under eighteen.
Section 2(1) of the Children Act 1989 provides that where a child’s mother and father were married to each other at the time of the child’s birth, they shall each have parental responsibility for the child. This applies also to children born as a result of AID.
Where the child’s parents were not married to each other at the time of the child’s birth, only the mother has parental responsibility (s2.(2)) but the father may acquire it either by a court order or agreement with the mother under s4, or a residence order under s8:s12(1). If the father had already acquired a parental rights and duties order under s4(1), Family Reform Act 1987, this will automatically be deemed to be an order under s4 of Children Act 1989 (sched 14, para 4).
Parental responsibility may also be acquired by a guardian, a person with a residence order, adopters and local authorities where a care order or emergency protection order is in force. Section 5, Children Act 1989 provides that a court may appoint a guardian if the child has no parent with parental responsibility or a parent or guardian with a residence order has died during the subsistence of the order. A parent with parental responsibility or a guardian may appoint another (or others (s5(10))) to act as guardian in the event of their death. Such appointment must be in writing, dated and signed by the maker or, where not so signed, signed at his direction and duly witnessed: s5(5). The section goes on to provide for the circumstances in which the appointment of the guardian may be revoked or disclaimed.
- more than one person may have parental responsibility for the same child at the same time
- where more than one person has parental responsibility for a child, each person may act independently without the other(s) in discharging that liability. This power is subject to any statute requiring the consent of more than person in any matter affecting the child
- the fact that a person has parental responsibility for a child does not entitle him to act in a way incompatible with any order made in respect of the child under the 1989 Act
- though a person who has parental responsibility may not surrender or transfer any part of it to another, he may arrange for some or all of it to be met by one or more persons acting on his behalf. A person acting on his behalf may already have parental responsibility for the child. An arrangement will not affect any liability the person making it may have as a result of failing to meet any of his parental responsibilities for the child concerned
Under s.5 Children Act 1989 a person with parental authority may appoint one or more persons to be guardians to take effect on his death. The requirements for the appointment are that it must be:
- in writing
- dated and
- signed by the parent
(or in the case of an appointment by will which is not signed by the testator, it is signed at the direction of the testator in accordance with the requirements of s.9 Wills Act 1837).