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Do I Need to Appoint a Guardian In My Will?

By Jo M Robinson

Republish: EasyPublish™ Published: 17Dec2009 Word count: 677 Viewed: 765 time(s) Get Free Content For Your Site

In this article we are going to look at the issues surrounding guardianship, and how you can appoint a guardian in your Will.

If a parent dies and there is no one else with parental responsibility, then the Courts will decide who is to receive parental responsibility of the children left behind. It is sometimes possible to appoint a guardian even if there is a surviving parent with parental responsibility if you have grounds to believe that the surviving parent is not capable of bringing up your child.

Parental responsibility is not as straightforward as you may think but the following points may help determine whether parental responsibility applies to your situation (England and Wales only):

A mother of a child will automatically have parental responsibility under law. The father of a child will also have parental responsibility under law if he was married to the mother of the child at the time of the child's birth.

If the child was born after 1st December 2003, a father who was not married to the mother of the child at the time of the child's birth will automatically have parental responsibility if his name is registered on the birth certificate.

If the child was born before 1st December 2003, a father who was not married to the mother of the child at the time of the child's birth will not automatically have parental responsibility, even if his name appears on the birth certificate.

Parental responsibility can be acquired in a number of other ways such as marrying the mother and having the birth re-registered as a child of marriage, making a parental responsibility agreement with the mother, obtaining a parental responsibility order from the court, obtaining a residence order from the court; or becoming the child's guardian on the mother's death.

If one parent passes away, it is usual for the surviving parent to become their guardian provided the surviving parent has, or acquires parental responsibility.

What is a guardian?

A guardian is a person you appoint to look after your child after your death. The guardianship will continue until your child reaches the age of eighteen.

You should seek the consent of the guardian before making the appointment, and you may decide to appoint a back up guardian in the event that your chosen guardian is unable to look after your child at the date of your death.

As the appointment of a guardian only comes into effect if there is no other person alive with parental responsibility, it is usual for parents to appoint the same person as a guardian in the event that they have both passed away.

A guardian can be anyone over the age of eighteen whom you trust, and may include a family member or a close friend. Your child may have a close relationship with another adult which may make your choice somewhat easier.

Care should be taken when appointing more than one guardian to avoid a dispute as to which guardian your child lives with. Your instructions should always be clearly set out.

How much authority will the guardian have?

The role of a guardian is similar to that of a parent. Your child's guardian will have a legal duty of care to your child, and will be responsible for their health, care, education and up-bringing.

How can I appoint a guardian

An appointment of a guardian needs to be made in writing, and signed and dated. The best way to appoint a guardian is under the terms of a Will, where you can also ensure that your estate passes to your child, and appoint trustees to handle your child's inheritance.

To sum up...

If you die without appointing a guardian, and there is no other parent with parental responsibility, the courts will decide who looks after your child - with results you may not like. By preparing a correctly worded Will or document, you can eliminate this potentially distressing situation and be confident that you have made provision for your child should the unthinkable happen.

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