Appointing a guardian in your Will

It is so important for a person to make a Will as this will ensure that their assets pass to those they intend to benefit.  However, if you are a parent of a child under eighteen you should also be considering what would happen to your children in the event of your death and put measures in place to cover this.

Topics to be answered in this article

What is a guardian?

A guardian is a term reserved for someone who is not a parent of a child.   In order to appoint a guardian a parent must have “parental responsibility” – these are the rights, duties, powers and responsibilities and authority which a parent legally has for their child and their property.  Guardianship ends when the child reaches 18.

There are different rules for who has parental responsibility depending on whether the parents are married or civil partners, so advice should be sought to ensure that an appointment of a guardian will be valid.

It is usual for an appointment of a guardian to only take effect if there is no one else with parental responsibility for the child because in most cases this cannot be overridden but there are exceptions to this and so again specialist advice should be sought if needed.

Role of surviving parent?

In the majority of cases where a couple share parental responsibility for a child, in the event of one dying the other will normally continue to care for the child.  However, in situations where there is only one surviving parent, guardianship is really important.

Why should I appoint a guardian for my children?

A guardian essentially steps into the shoes of a parent and is responsible for bringing up the child.  This can have implications on finances as well as an impact socially and emotionally on all parties so real care needs to be taken when choosing the guardian. Detailed discussions should take place between the parent(s) and the proposed guardian(s) to ensure that views on how the child will be brought up align with the parents’ wishes – e.g. the child’s education, the child’s faith if any, how the guardian will act in the child’s best interests etc. 

Who should I appoint as a guardian?

The guardian should be someone who you believe will always act in your child’s best interests.  It should probably be someone with a similar outlook on life to avoid any conflicts in the future. You may wish to consider whether they have the experience and the time to raise a child. Ask yourself, is the guardian of an appropriate age?  If they are too elderly, this could be an onerous role to take on and you would run the risk of upsetting the continuity of care for your child if the guardian was to die or become unable to act through ill health.

You can appoint more than one guardian although it would be usual to appoint a couple instead of two individuals.

It is not usual for a guardian to receive regular remuneration specifically for accepting the role.

How do I make sure that my guardian has access to money for my child’s benefit?

An appointed guardian will be entitled to receive Child Benefit and possibly a Guardian Allowance depending on the circumstances.

Where possible any financial obligations for your child should be met by your estate and the guardian would need to approach the Trustees of your Will to request monies for that purpose.  However, you should discuss and agree with the proposed guardian what would happen if the money ran out and they needed to bear the financial burden.

How do I appoint a guardian?

This can be dealt with as part of your Will and will provide you with the peace of mind that your children will be looked after when you are gone by someone you trust.  If you have already made a Will any appointment can be added as a Codicil.

If due to circumstances the appointment of a guardian needs to be cancelled or changed again this can be achieved through your Will or via a Codicil.

It is possible to appoint a guardian on a more informal basis and without involving a Will.  However, you should also consider what financial provision would be available for your child in the event of your death as this would be dealt with by your Trustees.  They would look after any inheritance due to your child until they either reached 18 or any older age stated in the Will and it may be that you want to leave guidance to your Trustees in respect of advancing monies to the guardian if your child needed it.

What happens if I don’t appoint a guardian?

In the absence of a guardianship appointment it will be the courts who decide where the child should live.  By appointing a guardian in your Will you can ensure that your wishes are carried out with the minimum of upheaval to your child.

Changing guardians (and guardians changing their mind)?

If you do not appoint a substitute guardian in your Will, and the original is unable to act due to health reasons or a change of mind on their part, then you will need to amend your Will to include a new appointment. This is why it is a good idea to appoint a substitute guardian from the outset.

Any person who is an acting guardian should ensure that they make provision for ongoing guardianship of any children should they die.

How can Goughs help me?

Here at Goughs, we have a large Private Client team who can assist you with both making or amending a Will, and the appointment of guardians. Get in touch today by emailing info@goughs.co.uk or call your local office.

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Author Bio

Trish Watkins

I have been involved with Private Client law for 17 years and fully qualified for almost 11 years.  I had studied law at college and at the age of 30 an opportunity arose to study and train to become a lawyer which I achieved.  I have always had a strong empathy for the elderly and vulnerable and pride myself in being able to engage with them and support them through what can be very difficult times.

I joined Goughs in January 2020 and despite all the challenges that 2020 has brought I am really pleased I made the move and look forward to helping many more people in the coming years.

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