Guardians For Children

What exactly is a Guardian and what responsibilities do they have?

Guardians take on the role of parent to your children.

  • It’s vitally important to appoint Guardians in case the unthinkable happens to you while the children are under 18.

Important Notes:

  • Failing to name Guardians in your Will means that the care of minor children will be decided by the courts.
  • You should ensure that those people you want to bring up your children are willing and able to do so.
  • You should make financial provisions for your children to enable their Guardians to raise them.
  • It’s best practice to consider the age of the Guardians and to appoint two.

The role of a guardian is a very important one if you have children, should you die without making a will, or if you do not appoint guardians in your will, your children could be placed in care until the court appoints official guardians to look after them. This could take months and would obviously result in distress for your children and other members of your family. You should remember to request that your appointed guardians also make a will themselves to further safeguard the future of your children

 Who should act as guardians?

You will need to consider who should be the guardians of any children under the age of 18 or 16. For Scotland, who may survive you. The law has certain requirements, particularly where the parents are unmarried, or have divorced or separated.

Assuming that either parent has the power to appoint a guardian or guardians on their death. It is usual for such appointments to take effect on the death of the second parent. The normal choice is to appoint family members, particularly where very young children are involved. As children grow, the appointment of friends may be more appropriate, as they are more likely to share your lifestyle and in these modern times, live nearer than your family.

It is usual, but not essential that the same persons are appointed guardians for all of the minor children when the guardians are to act only after the death of the surviving parent, it is desirable but each parent should appoint the same persons to act as guardians. It is of course important you should obtain the consent of the proposed Guardian before making the appointment. Although each parent can appoint different guardians, it is worth remembering that both will legally act in the event of your death. So depending on who you have chosen, will impact your children’s future. You can also appoint different guardians for different children but this may mean splitting them up. Guardians have to ensure that adequate contact between the children is maintained. But you may not be happy having your children divided in this way.

Who Cannot Be Appointed As Guardians?

Unmarried fathers who don’t have parental responsibility cannot name guardians. Neither will they necessarily become Guardian should the mothers die. If they wanted to ensure that they did, it will be necessary to enter into a written agreement to share responsibility with the mother or apply to the court. It would be possible for unmarried fathers to become guardians if pointed by their mothers or by marriage.

How many Guardians Can You Have?

Where the appointment of family members is being considered, care needs to be taken when considering appointing a committee of relatives, for example, more than two. The obvious disadvantage with a committee is that the wellbeing of your children may be overlooked and the committee can be difficult to manage. It is best to limit the maximum number of guardians to two and it is preferable that they share a home as partners. Thus, your children will become part of a familiar stable environment in what’s probably the most difficult time of their lives.

Can You Have Substitute Guardians

By all means, appoint substitute guardians, as this will ensure continuity if circumstances change with originally appointed Guardians.

What Are The Guardians’ Duties?

The Guardian’s duties are essentially the same as those of a parent. They are responsible for the day-to-day upbringing of your child, including holidays, birthday presents, and all the everyday things that we take for granted. The terms of the will should be such that the executives and subsequently trustees can do all that is necessary to assist in financial terms.

The implications of the role of the Guardian is a very responsible one and should not be entered into lightly. There will be financial, social, and emotional implications taking on such a vast role, and the matter should be discussed in detail between you and the appointed guardians. Many parents will provide financial support for their children in the event of death. And although it may seem insensitive to question them about this, it is a factor in making your decision.

A Guardian may be able to claim Child Benefit and receive a Guardians Allowance. In the event, that both parents are deceased, where one parent is alive and an appointed Guardian is still called upon to act, this situation will obviously be more complicated. There are circumstances under which the Guardian will be called upon when both parents are not deceased. And in certain cases where a surviving parent is unable to perform their role because they are overseas in the army, in prison, disabled or mentally incapacitated, or after the death of the first parent or they just refuse responsibility.

A couple are separated or divorced and just one of the parents dies the Guardian will act with the surviving parent should a dispute arise, but disputes will have to be settled by the court. The surviving parent is still considered the statutory Guardian.