How to choose the right guardian for your children in your will

27 March, 2015

We all know that we should have a will in place to deal with our property and savings. 


You can also use your will to appoint a guardian for your children in the event of something happening to you before they turn 18.


What does being a guardian actually mean?


Appointing a guardian is more than just choosing where your children might live if you’re no longer around; you are giving that person parental responsibility for them in the event that both you and the children’s dad die. Parental responsibility means that the guardian can make important decisions about things such as medical treatment and schooling.


If you simply agree informally with friends or family members where your children would live if you both die, then no-one would have parental responsibility for them.


Who can appoint a guardian?


If both parents have parental responsibility for a child, they can both appoint guardians in their wills. If only one parent has parental responsibility, only that parent can appoint a guardian.


Mums automatically have parental responsibility for a child, and dads have it if they are married to the mother when the child is born. For unmarried parents, dads have parental responsibility if his name is registered on the birth certificate for any child born on or after 1st December 2003, or if he has obtained parental responsibility by way of a parental responsibility agreement with the mother or by court order.


When does the appointment become effective?


Whilst both parents can appoint guardians in their wills, these appointments can only take effect when there are no parents alive with parental responsibility.


So, you can appoint your choice of guardian in your will, but it won’t come into effect unless the children’s dad also dies, assuming he has parental responsibility.


Who should I choose?


If possible, it is a good idea for both parents to agree on the choice of guardians, and appoint the same people in their wills. If different people are chosen, and both parents die before their children turn 18, both appointments will take effect and the children could end up with different sets of guardians trying to agree on bringing them up. If the guardians can’t agree, they could then end up having to go to court.


When choosing the right guardian, think about the ability of that person to take care of your children. Your initial thoughts might be your parents, but will they still be able to cope in 5 or 10 years time? It is possible to impose conditions, so for example you could appoint your mother provided she is aged 70 or under, and if not, appoint your sister.


Asking someone else to care for your children is a huge responsibility and is something you should discuss with them before you make a will. Will the people chosen bring your children up in the way you would have wanted? Are their views like yours? You can write a letter of wishes to your chosen guardians, to let them know your views and thoughts, but this will only be guidance, and won’t be binding on them.


Many people will automatically want to choose family members, but consider, if you appoint your sister and her husband, what happens if they separate after your death? You may choose to appoint just your sister, or you may say that you appoint you sister and brother in law if they are both alive and remain married, otherwise you appoint someone else instead.


You might also think about what would happen if your choice of guardian died before you or was unable to take on the role for some reason. You can provide for this in the will, so for example, you can appoint your mum and dad as guardians, but if they die before you, you can specify that your brother and his wife be the guardians instead. You should also tell your guardians who you would want them to appoint in their wills as their replacement guardians if they died after you.


Finances will also inevitably play a part. Will your choice of guardian be able to manage the extra burden of more children? Many parents leave their estates on trust for their children, with powers built in to allow money to be advanced to them before they grow up. However, you might think about allowing your trustees to loan money to the guardians, for example, so that they can buy a bigger house.


There are other complicated rules that apply when a child is living with someone under a Residence Order, or if they already live with a guardian. Seeking advice from a specialist legal firm can offer further detailed advice on these issues or any matters relating to wills and appointing guardians. 


Author Bio: Karen Witter, a Partner at Davis Blank Furniss, helps clients to deal with difficult aspects of life through the drafting of wills, probate administration and organising Personal Injury Trusts.

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