How do I make someone a legal guardian of my children if I die? If I die does my child automatically go to his father? Who gets custody of my child if both parents die?
This article outlines how you can appoint a legal guardian for your child in your Will.
Parents often want to be sure that in the possible (though unlikely) event of them both dying before their children reach 18, people they approve of and trust will take care of the children.
Appointing guardians to do this gives the parents peace of mind.
However, despite this, a recent report reveals more interesting and astonishing trends amongst parents.
Whilst parents were found more likely to have a Will compared to the UK average and those without children, the most significant finding was that families with children under 18 were less likely to have a Will.
This suggests that whilst older families provide for their adult children through legacies and other provisions, not as much emphasis is being placed on the need to provide and appoint guardians for children under 18.
This article outlines how to appoint a guardian for your children and the relevant considerations.
Can I appoint a guardian for my children?
A parent who has parental responsibility for the child can appoint a guardian.
What is parental responsibility?
Parental responsibility covers all the rights, duties, powers, responsibilities and authority that a parent of a child has in relation to the child and his property by law.
A person with parental responsibility for a child stands in the shoes of a parent when caring for the child or making decisions for the child.
For instance, that person can make decisions about the child’s accommodation, education and medical treatment.
More than one person may have parental responsibility and so each can make an appointment.
Who has parental responsibility?
A child’s mother will always have parental responsibility for her child.
If the child’s parents were married or in a civil partnership at the time of birth, then both will have parental responsibility.
However, if not, then only the mother will have parental responsibility.
The father can later acquire parental responsibility through:
Marrying the child’s mother;
Having his name registered as the father on the child’s birth certificate;
Entering into a parental responsibility agreement with the child’s mother; or
Obtaining a parental responsibility order from the court.
Someone does not merely obtain parental responsibility by merely becoming a step-parent to the child and marrying a natural parent, unless either the natural parent agrees or the court orders so.
What is a testamentary guardian?
The term “testamentary guardian” merely indicates that the guardian has been appointed in a Will.
Therefore, there is no need to include the word ‘testamentary’ when appointing the guardian in your Will.
Do I need to appoint my guardian in my Will?
By law, the appointment of a guardian which is intended to take effect following death must be:
Signed by the person making the appointment.
Accordingly, the appointment need not be in a Will.
However, most parents prefer to appoint guardians in their Will.
This is good practice as a Will is less likely to be forgotten or mislaid after a death than a separate, less formal document.
Parents also usually intend the appointment to take effect on their death, which is when the rest of the Will takes effect.
An appointment of guardians may be valid even if the Will itself is not valid.
If the testator signed and dated the Will but did not have it witnessed, the Will is not admissible to probate, but still complies with the requirements needed for an effective appointment of guardians.
Who can be a guardian?
Only individuals and not, for instance, trust companies, can be appointed as guardians.
It is possible to appoint more than one guardian.
As such, parents often choose to appoint a married couple as joint guardians.
However, issues can arise where the parents of the child are separated and appoint different guardians; or where the first parent dies and the surviving parent changes their Will to appoint a different guardian.
The two separately appointed guardians must then try to agree on matters relating to the child's upbringing and education. If they disagree on important issues, they will have to refer to the court.
To avoid these difficulties, where possible:
The parents should appoint the same guardian(s).
The Will should be drafted so that only the appointment in the Will of the second parent to die should take effect.
When does an appointment take effect?
The appointed guardian will become the child’s guardian if, at the testator’s death, either:
No parent with parental responsibility survived the testator; or
There was a residence order in the testator’s sole favour in respect of that child.
Can a guardian reject or refuse an appointment?
A guardian can disclaim their appointment.
To be effective, the disclaimer must be:
Signed by the guardian; and
Made within a reasonable time of first knowing that the appointment has taken effect.
Can a guardian appoint a successor?
By law, an appointed guardian has the ability to appoint another person to take their place in the event of their own death.
It is usually advisable, however, to include an express provision stating that the appointed guardian can appoint a successor as the appointee may not be aware of their ability to do so.
An individual with parental responsibility may appoint a guardian by Will or by another signed and dated document which provides that the appointment only takes effect on their death.
Whilst the appointment of a guardian need not take place in a Will, it is usually convenient to do so as the Will can also deal with other important issues relevant to the future upbringing and welfare of the children.
The use of a trust fund in the Will may also be used to cater for the child’s maintenance, education and future welfare.
It is important to consider who is best placed to look after your children.
It is important to obtain the consent of the proposed guardian before making the appointment.
It is important to plan ahead and use your Will to make arrangements for those who are to care for your children if you are no longer here.
If you would like to appoint a guardian for your children in your Will, please contact Edward on 07368 526296 or email@example.com to get started and finished on planning ahead.