Why should you appoint a guardian in your Will?
If you have children under the age of 18 at the time of your death, then it is important to appoint a guardian so that someone you trust has parental responsibility of your child(ren) upon your death. Guardians are legally responsible for the children in the same way that you are as their parent – this includes decision about healthcare, living circumstances, education etc.
It is important to note that, whilst most people assume that the other parent will automatically retain parental responsibility, this is not always the case. If you were married when the child was born or your partner was listed on the birth certificate then they automatically hold parental responsibility therefore there is no need to appoint them as a legal guardian. However, if your spouse or partner was not named on your child's birth certificate then they will not automatically have guardianship over your child(ren).
How do I appoint a guardian?
You can appoint a guardian or guardians of your choice by including a specific clause in your Will. Often people appoint other family members such as siblings or parents however you can also appoint friends. Your guardians must be over the age of 18.
You can appoint different guardians if you have more than one child – there is no rule confirming that you need appoint the same guardian for both/multiple children.
Your appointed guardian will only take on the responsibility of the guardianship upon your death/the surviving spouse's death and the guardianship will automatically end when the child reaches the age of 18 years old.
What is the guardian's financial responsibility?
It should be noted that a guardian does not have any responsibility to raise your children using their own financial resources. When you appoint a guardian, you can put into place arrangements to ensure that they have enough resources to raise your children appropriately.
You could leave the guardian a pecuniary gift (otherwise known as a cash gift), you could appoint the guardians as trustees as well so they have authority to arrange payment for ongoing expenses (i.e. schooling, clothing etc), or you could inform you trustees (if different people than guardians) how you would like the guardians to receive money for your children – this could be done by writing a 'letter of wishes'.
How to change the named guardian in my Will?
If your circumstances or your guardian's circumstances change, you can always change your guardians by amending your Will. It is good practice to review your Will every few years to ensure that your appointed guardians are still willing to act. If for whatever reason you decide to change your guardians, then you could do so by writing a new Will or a Codicil.
What happens if you haven't appointed a guardian?
If you haven't appointed a guardian for your child(ren) and you unexpectedly die and you don't have a surviving spouse or partner then it will be for the Court to decide who to appoint as your child(ren)'s guardian. Although this is usually a close family member, there is no guarantee, so it is very important to consider including a guardianship clause in your Will to make sure you have a say in this decision.
At Clapham & Collinge we have a dedicated team of experts who are able to provide you with all the necessary information, support and legal advice relating to claims for provisions for family and dependents. Our legal advice is bespoke, confidential, and designed around you, helping you reach the best outcome.
If you would like to seek advice on Wills, Trusts, Probate, Lasting Powers of Attorney or any other private client related matter, please contact our dedicated Client Relations team on 01603 693510, or email enquiries@clapham-collinge.co.uk.
This article is provided for general information purposes only and does not constitute legal advice or professional advice.
