Guardianship provisions in wills

As a parent you always want to make sure that the interests of your children are safeguarded, especially in circumstances where the worst can happen. Appointing guardians under the terms of your will can provide certainty of your wishes and clarity concerning how you want to raise your children.

If both parents have passed away unexpectedly leaving minor children then nominating guardians under the terms of your will can provide clarity.

These clauses are useful in preventing close family potentially falling out, as the assumption is often that your closest relatives would step in. However this option may not always be the most suitable particularly if there are complex family arrangements.

What is parental responsibility?

Every parent has legal rights and responsibilities to their children – this is known as parental responsibility. A mother has automatic parental responsibility from the birth of the child. Whereas the other party usually has parental responsibility if they are either:

• Married or in a civil partnership with the child’s mother at the time of birth
• Listed as the father on the child’s birth certificate, which applies to any children born after 1 December 2003

If parents of a child are married or in a civil partnership when the child is born then they both automatically have parental responsibility for their biological child. The parental responsibility continues even if the couple later divorce. It is the person who has parental responsibility that is in charge of caring for the child.

What is a guardian?

A guardian that is formally appointed under the terms of your will takes over the parental responsibility for your children until they reach the age of 18. Appointment of a guardian is an important decision as they will have autonomy over your child’s schooling, health, welfare and is responsible for their personal development.

You can appoint anyone you wish to be a guardian as long as they are over 18 and they have full mental capacity. A guardian is usually a friend or family member who you think would make a good surrogate parent. You can appoint more than one guardian and also replacement ones. This is advisable especially if there is potential for conflict or if one of the proposed guardians chooses not to take up the appointment for their own reasons.

What happens if I do not appoint a guardian?

If you were to pass away and there is no one else with parental responsibility for your child then the decision as to who to appoint as a guardian would fall to the court. This could potentially mean that your children end up with someone who you would not want looking after them and could lead to unnecessary disruption to their lives.

What if I am a single parent?

There can be further complications if you are a single parent where your co-parenting relationship may have broken down. In these circumstances you may not be able to make a successful guardianship appointment until the other person with parental responsibility has died. If you have concerns about your co-parent then the appointment of your executors and trustees is crucial. Despite the fact that the remaining parent will have day-to-day responsibility for your child, the trustees will retain control of the funds that may be due to your children under the terms of your will. The statutory age of inheritance within the UK is 18, so the trustees are in charge of keeping the money safe until the children reach that age. You are able to nominate a higher age of inheritance, but the suitability of this would be discussed as part of the will instructions.

How can my wishes be followed?

Whilst it is not possible to legally bind a guardian to a particular course of action, you can produce a non-binding letter of wishes that detail your preferences and desires. This letter of wishes sits alongside your will and aims to provide direction for your guardians as to how you may want your children to be schooled, religious views and living arrangements.

The letter of wishes can be updated at any time without the need to amend the provisions of your will. This means that you can adapt your instructions to suit your child’s needs as they grow older.

Finally, it is strongly recommended that you discuss the appointment of guardians with the person or people who you wish to choose. The role of a guardian is imposing and life-changing, so it is best to make sure that the person is happy to act before you appoint them in your will.