Guardians

Appointing a Guardian Guardians should always be nominated in your Will if you have children under the age of 18. Normally your Will would stipulate that a Guardian is only appointed on death of their second natural parent, and you should also nominate alternative Guardians if your first choice is unwilling or unable to act. Your Guardians would also be very wise to write their own Wills to ensure that provisions are made should they die whilst carrying out their role.

Guardians Duty Since your Guardians primary duty will be to bring up your children as their own, you need to ensure that the Guardians themselves would be in a position to be able to fulfill that role. You would need to discuss their appointment with any potential Guardian and gain from them confirmation of their willingness to Act. Practicalities like the size of a Guardians home, their age and where they live should also be considered. Matters like how much would it cost to bring up two more children and where would the money come from should also be discussed. Perhaps an appropriate life assurance plan written into Trust could provide a possible solution?

Another consideration would be, would you really want your children to be uprooted from their friends to live with your sister who lives in New Zealand? Would you want them to be separated from each other if you had more than one minor child?

Many people consider appointing their parents to act as Guardians, but again, in many cases whilst it represents an easy solution to get the Wills prepared, in many cases when thoroughly thought through, this is not a very practical or ideal solution. After all, when you are a Grandparent, whilst its nice to see and look after their Grandchildren, sometimes its nice to be able to hand them back!

The Legal Guardians Role Guardians after your death take on full parental responsibilities for your children. This includes all aspects of their upbringing and well being including all aspects of their healthcare, education and religion and so on. Guardians effectively take over your role as parent to your children, so it is absolutely essential that the Guardians you nominate have as similar views, values and outlook on life as yourself, so it is essential that your Guardians are chosen with great care.

Executors as GuardiansExecutors may also be appointed to Act as Guardians if appropriate in your Wills should you wish. It is only natural that you would want your children to be beneficiaries in your Will, but normally you would stipulate an age for the children to physically inherit your worldly goods. Between such times as you die and your children reach the age to inherit as specified in your Will, your Executors will hold capital under what is known as a Testamentary Trust. During that time, your Executors would take on the mantle of acting as Trustees, and as such, capital can be advanced by the Trustees to pass to the Guardians in order to assist with your children's maintenance and education. You should note however, that in such cases, a potential conflict of interest could arise with the Trustees advancing capital from the Trust to the Guardians when they are one and the same.

Parental Responsibility Only a parent with parental responsibility can appoint a Guardian in their Will. A mother automatically has parental responsibility, and so does a father who was married to the mother when the child was born. An unmarried father has parental responsibility automatically only if he is named on the child's birth certificate and the birth was registered on or after 1 December 2003. Otherwise he can gain it through a parental responsibility agreement with the mother or by a court order (Children Act 1989, section 4).

A Guardian appointed in your Will usually only takes over when no parent with parental responsibility is still alive (Children Act 1989, section 5).

For more detail, including what happens in separated families and how Guardians and Trustees work together, see our guide: What is a Testamentary Guardian?