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17 July 2017 | Comment | Article by Gareth Wisdom

Wills and guardianship: Choosing who will be responsible for your child if you die

26 June 2017 marked the 20th anniversary of the publication of first Harry Potter novel, Harry Potter and the Philosopher’s Stone.  Harry, orphaned following his parents’ deaths shortly after his birth, lived with his maternal aunt and her husband, the Dursleys, in quite miserable circumstances in his cupboard under the stairs, until his admission to Hogwarts School of Witchcraft and Wizardry when he turned 11.

There’s no mention of Harry’s parents having made a will.  If they had, it could have included details of who they would have wanted to become Harry’s guardian if they died before he reached 18.

People often think that the only reason to make a will is to set out who is to receive their assets on their death, and so if they feel that they don’t have very much of a financial value to worry about then they may not think that it’s worthwhile for them to make a will.

Whilst the disposal of your assets (both of a financial and a sentimental value) on your death is the primary purpose of the will, you can also include provisions in your will to make clear who you would want your children to be cared for in the event they are orphaned.

Can I appoint a guardian in my will?

Section 5 of the Children Act 1989 provides that guardians can be appointed for children under 18 by:

  • a parent with parental responsibility for the child
  • an existing guardian of the child
  • a court order made in family proceedings

In the first two instances above, the guardianship appointment can only come into effect on the death of the parent or existing guardian.  It is sensible, therefore, for the appointment to be included within their will.  It’s important to note that the appointment of a guardian will become effective when all people who have parental responsibility for the child have died.

How do I choose who to appoint?

Bringing up a child is a serious responsibility, and can be long term.  People often, therefore, think of their family members, but wish to name guardians from both the paternal and maternal families.  It is important to consider the practicalities of how those named would determine which of them would assume the day to day care of the child, and whether appointing two or more people could cause conflict when the decision has to be made.

Other considerations should be the geographical location of those you are thinking of naming as guardians, their relationship/connection to the child, and whether the guardian’s age (if the guardians are grandparents, for example) will impact on their ability to care for the child on a full-time basis.

Naturally, you should appoint a guardian you trust, and who you are confident will bring up your child in the manner you would do yourself.

Often when naming a guardian in your will you will also need to decide who you would wish to act as trustees of inheritance you leave for your child.  The trustees will be responsible for managing the inheritance on the child’s behalf until they reach the age at which you feel that they can deal with it themselves.  Whilst the child is under 18, the trustees may need to provide funds to the guardian in order for your child’s day to day needs to be met.  You may feel that you would prefer the same person or people to perform both roles, or you may wish there to be independence between those with the financial responsibility, and your child’s guardians.

Whoever you choose to appoint as guardian, it is important that you speak with them to discuss your wishes for the upbringing of your children in the event of your death before they reach 18, and to ensure that they would be willing to take on the guardianship appointment.  Whether the Potters would have appointed the Dursleys as Harry’s guardians if they had made wills will remain a mystery, but in the real world such important decisions shouldn’t really be left to be made by others.

Author bio

Gareth Wisdom


Gareth Wisdom is a partner and head of our will writing services. He is responsible for the business development of the will writing team and our wider private wealth management proposition.

Disclaimer: The information on the Hugh James website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.


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