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3 September 2013 | Comment | Article by Matthew Evans

Wills and guardianship: who has responsibility for your children if you die?


The recent birth of Prince George has seen the nation gripped by baby fever. In her blog, Amanda asks how many of us have thought to appoint legal guardians to ensure our children are cared for in the event they become orphaned?

With the recent birth of a royal, the nation has been gripped by baby fever. After naming the third in line to the throne George Alexander Louis, the Duke and Duchess of Cambridge will shortly be turning their attentions to the royal baby’s christening. With this in mind, they have the arduous task of deciding who to appoint as godparents.

In the light of this, how many of us can say that we have thought of or even gone as far as putting steps in place to ensure our children are cared for by the people we choose in the event that they become orphaned?

What many people do not realise is that the role of a godparent is not the same as that of a legal guardian. Like all new parents, the Cambridge’s would be well advised to consider the legalities of appointing a legal guardian for Prince George.

Who can appoint a guardian?

Anyone who has ‘parental responsibility’ for a child (a minor under the age of eighteen) can appoint a guardian under the terms of their will. This is governed by s.5 of the Children Act 1989 which stipulates that guardians may be appointed by:

  • a)a parent with parental responsibility for the child (s.5(3));
  • b)an existing guardian of the child (s.5(4)); or
  • c)a court order in family proceedings (ss.5(1) and (2)).

Appointments by the individuals listed in (a) and (b) above would only become effective on death. It is only at this time that the appointed guardian(s) would acquire parental responsibility. This is why it makes sense to incorporate these provisions into your will.

What is parental responsibility and who has it?

Parental responsibility is described by the Children Act 1989 Act as ‘all rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to that child and his or her property’ (s.3(1)).

A mother automatically has parental responsibility for a child from birth, but it is slightly different for fathers and it is a common misconception that they automatically obtain parental responsibility if they are the child’s biological parent. Fathers usually have parental responsibility if they are married to their child’s mother at the time of their birth or if the child’s birth is later legitimated by the subsequent marriage of their parents. Both parents would also have parental responsibility if they jointly adopted a child.

If parents of a child are unmarried, the father can ensure he obtains parental responsibility by one of the following methods:

  • registering his name on the birth certificate;
  • obtaining a parental responsibility order from the court; or
  • having a parental responsibility agreement with the mother of the child.

Who should I appoint as a guardian for my child?

When you are thinking about the most suitable person or people to appoint as testamentary guardians for your children, you should think about a number of different factors. These should include things such as their relationship to you and the child, where they are located and how the child’s move to this location could disrupt their life. Other things such as the guardian’s age should be taken into consideration. Your parents may be the natural choice to be guardians for your children, but their age may mean that they will, in all likelihood, predecease you or may not be physically able to look after your children. It goes without saying that you should appoint people who you trust and who you would trust to bring up your child or children in your absence.

The appointment of a guardian only takes effect once all people with parental responsibility for a child or children have passed away.

Can guardians act as executors of my will too?

In short, guardians are charged with the legal obligation of acting in the children’s best interests and this includes financial decisions if they become trustees of any ongoing trusts created under the terms of your will.

Guardians can therefore also act as executors and trustees.

If you are in doubt as to who you should appoint as executors and trustees of your will, why not read Georgia O’Reilly’s article on this topic which highlights the importance of appointing trustworthy individuals: ‘Choosing an executor: who do you trust with all your wordly goods?’

To conclude

Taking on the responsibility of someone else’s child is a very serious and life changing matter and is not something to be taken lightly. If you are unsure about who to appoint as a guardian for your child or children, then make a list of the names of the people who you would consider to be a good choice for the role and list the qualities you would want your child’s new guardian to have. Below is a list of other things to consider when making that all important decision:

  • make sure that you have a discussion with any potential guardians who you wish to appoint so that you are safe in the knowledge that they are willing to act in the capacity in which you wish to appoint them;
  • make sure you assess what type of relationship your child has with the person you are appointing and that you would be satisfied to leave your child in that person’s care until they come of age; and
  • think about the practicalities of the guardian you wish to appoint acting in that capacity. If they are considerably older than you or they live abroad or a long way from where you currently live, then think about the effect that this may have on your child’s life when you are gone.

Do not just see your will as something to pass on your wealth to your children and other family members and friends when you are gone, but as a way to safeguard your children should the worst happen.

If you still haven’t written a will, why not read up on how to go about getting us to draw one up for you today by visiting our ‘Write a will’ page.

Author bio

Matthew is a partner and heads up the firm’s private wealth offering. He is responsible for the development, implementation and long-term strategy of the team.

Matthew has a UK-wide reputation in the field of contentious probate, recognised by his clients and peers in the leading legal directories.

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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