HCR Law Events

7 July 2020

Choosing a guardian for your children

Lockdown has been a busy period for the Wills, Trusts and Estates team with a number of people writing a will for the first time. One of the trickiest decisions for them is appointing guardians – the people who will care for your children should you die before they reach the age of 18.

In this article, we’ll take a look at the role of a guardian and some of the things you should think about when you are choosing them.

What does a guardian do?

A guardian will step into your shoes and will be responsible, amongst other things, for bringing your children up; providing them with a safe home; maintaining their diet and health; and educating them.

On that basis, it would be sensible to choose a guardian who shares your beliefs and values and who will be able to provide continuity to your child’s current way of life. For instance, would your children be able to continue to attend their current school or carry on their hobbies?

Who can you appoint as a guardian?

Any adult can be appointed as a guardian but you should consider the change that it would bring to their life.

Your parents may be an obvious choice but will their age and health be up to the physical demands of raising children? A sibling may be an alternative choice but do they have children of their own and how would both sets of children blend?

You can appoint more than one person as a guardian as well as appointing different guardians for different children, if required.

Generally, an appointment of a guardian will take effect on the death of the second parent to die. If you do not appoint a guardian, the court will appoint someone who they consider will act in your child’s best interests.

What about the financial implications of being a guardian?

You will be aware that bringing up children is expensive and there will be a financial impact on your children’s guardian.

However, you can  authorise your trustees (the people you appoint to administer your estate after your death) to make provision for your children to prevent a guardian being out of pocket. Further provisions can allow the making of loans from your estate to a guardian. For instance, a loan could help a guardian buy a larger house.

A guardian can also be a trustee of your estate so that they would be responsible for both your child’s pastoral care as well as the associated financial decisions. However, it may be sensible to appoint a further trustee who is not a guardian so that they can maintain a more objective viewpoint.

What happens if you are divorced or separated?

A guardian appointed in your will cannot override a parent who has parental responsibility. This can cause upset with those who have had difficult separations but should not prevent you choosing a guardian.

Safeguarding your children’s future

Once you have made your decision you will need to ask the person(s) whether they are happy to act as a guardian. You will also need to discuss your wishes for the children.

Hopefully a guardianship provision will not be needed but, by making the decision, you will have taken a considerable step to safeguarding your children’s future.

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About the Author
Alex Taylor, Partner

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