If you are the parents of young children, the appointment of Guardians in your Will is vitally important and should be given careful consideration. Appointing Guardians gives certainty in the situation where both parents have passed away unexpectedly and where otherwise there may be conflict between surviving family members as to who should care for the children. Often a first response to the question is to nominate the closest relative, but they may not always be the most suitable person.
A Guardian is a legal status under which a person has Parental Responsibility for a child or children following the death of one or both parents.
This status will continue until the child reaches 18 and in essence means that the Guardian will be responsible for providing a home and supervising the upbringing and health of the child.
More than one person can be appointed jointly, and parents can in theory make separate appointments, although from a practical point of view it is much easier for everyone if they choose the same people!
There can also be complications where the relationship between parents has broken down, or the father does not have formal Parental Responsibility for the child. If you are a single parent, and the other parent has parental responsibility, you may not be able to make an effective appointment of Guardian until both parents have died. If you have any concerns regarding the protection of your estate in this situation, your choice of Executors and Trustees will be key. Although the Guardian will have day to day care of your children, the Executors and Trustees you choose in your Will will retain overall control and management of the estate monies. If you believe either of these cases may apply to you, you should seek further specific advice.
You can also choose alternative Guardians to act if your first choice is unable or unwilling to, however once an appointment has been accepted, only the Guardian can then choose their successor.
When considering who you might appoint as Guardians, the following factors should be taken into account :
- Proximity of family relationship
- Age
- Existing knowledge of, and relationship with, the child
- Religious/cultural background
- Geography – that is, location of the proposed Guardian
- Suitability of residence and way of life
- Avoidance of disruption to the child’s education and social life
You may have specific and strong views in relation to some aspects of your child’s upbringing, for example religion, however it is not possible to legally bind Guardians to a particular course of action. If you have strong views you wish to be taken into account, then a personal letter to the Guardian is the best way to achieve this, rather than including stipulations in the Will itself.
Finally, we would strongly recommend that you discuss the situation with the proposed Guardian in advance of making the appointment in your Will – communication and understanding as to the role is essential. You will then have peace of mind that should the worst happen, your children will be cared for by someone you trust and who understands what is expected of them.
If you would like further advice on appointing Guardians and making a Will in general, please contact Kathryn Caple on 01283 526200 or email kathryn.caple@elselaw.co.uk.