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16th November 2018

Choosing Guardians for your children - some dos and don'ts

The issue of who to appoint to be the Guardian of your minor children after your death comes up time and again in our meetings with clients.  The same misconceptions abound: for example, surely the next of kin of the deceased parents would automatically have custody of minor children?  Aren’t godparents and guardians the same thing?
When discussing Wills with clients with young children, the issue around Guardianship is often a sticking point which, more than other aspects, delays the finalisation of the Wills.

Here are some key points for consideration by parents appointing Guardians:

  1. You and your spouse do not need to appoint the same Guardians.  For example; you may wish to appoint your sibling and your spouse may wish to appoint their own sibling.  This is perfectly acceptable, however you will need to ensure that the Will is drafted so that it is clear whether or not those appointments would take effect together on the second death (i.e. a Guardian appointed in the Will of the first to die would be “in waiting” until the second death when he or she would act jointly with the Guardian appointed in the Will of the second to die).  A simpler arrangement is for the Guardian appointed in the Will of the second to die to act on their own.  This provides clarity as to with whom the child will live.  Whichever you choose you must ensure that the drafting is clear.
  2. Many people choose to appoint their parents or their siblings.  With parents, consider their age and circumstances, as some elderly parents may find the burden of young grandchildren difficult.  Siblings are a natural choice; however, again if appointing a sibling who does not yet have children, is this a role they would be happy to accept?  In all circumstances discuss the appointment in advance of appointment. 
  3. With children possession really is nine tenths of the law.  Those elderly parents who can cope with a child for (just) a few hours may become social service’s choice of guardian in the absence of a valid document appointing someone else.
  4. People often assume they should appoint the spouse of a proposed Guardian.  A point to bear mind is that both will have joint parental responsibility for your child.  If they divorce (or one dies), they (or the survivor) will each retain parental responsibility and this may not be what you want.
  5. Where parents of a child are not married, the biological father will not automatically have parental responsibility for the child.  This means that only the mother can appoint a Guardian for the child.  If the mother then dies while the child is under 18, then the chosen Guardian and not the biological father will be able to take decisions about the child and will have no legal obligation to consult the biological father.  In order to avoid this, the child’s father should be registered on the birth certificate which would give him automatic parental responsibility from the outset, or, as an alternative, apply to the Court for a Parental Responsibility Order which would have the same effect.
  6. Guardians are the people that your children should live with and who will make all decisions about every aspect of your child’s lives.  This includes deciding where they live and go to school; which family members they have contact with; what medical treatment they should receive and so on.  We recommend preparing a letter to your Guardians setting out in detail how you see your children’s lives unfolding.  This can be invaluable guidance for your Guardians when exercising their duties. 
The above is simply a snapshot of the issues and concerns that we come across when discussing Guardianship with parents of young children.  The key points to remember are:-

  1. Draft your Will clearly (preferably with professional guidance) in order to avoid trouble and heartache down the line.
  2. Do not to let the choice of Guardians delay the signing of your Will.  A Will without a Guardianship clause is infinitely better than no Will at all and the Guardianship clause can always be added at a later date by Codicil or effected by separate written declaration. 
If you want to discuss the inclusion of a Guardianship clause in your Will, or the preparation of a separate statement, please contact Elizabeth Herbert at elizabethherbert@hewitsons.com
or 01223 461155.  
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