Guardians and Your Children

Wills Factsheet No.10

Should you wish to do so you can in your Will appoint a person or persons to be responsible for your children in the event that they are left without a parent before they have reached the age of 18. That person or persons is known as a guardian(s) and they will essentially have the same rights and responsibilities as you do in relation to the upbringing of the children.

Why should you appoint a guardian?

If you have children who are under the age of 18 then it is likely that you will want to ensure they are properly looked after in the event that they are left without a parent.

Although there is no need for a married couple to appoint each other as guardians of their own children (they already have that responsibility), the appointment of a guardian is something you may wish to think about where:

you are a single parent,
you are cohabiting and the children are not the children of your partner, or
you want to make provision for the situation should you and your spouse/partner both be killed.

Note that if you do not currently have parental responsibility for a child (for example you live with or are married to, or in a civil partnership with, the child's parent but have not adopted or taken on parental responsibility) you cannot appoint a person to be a guardian and, if you wish to continue to be responsible for the child, then you will need to be appointed as the child's guardian in your partner's Will.

What if I don't appoint a guardian?

Although you do not have to appoint a guardian, if you do not and your children are left without a parent before they reach the age of 18, then the courts will appoint guardians. Be aware that those guardians will not necessarily be the people whom you would have chosen and there may be a period, pending the appointment, when your children have to be taken into care. By making an appointment in your Will you can take steps to help ensure that the people whom you choose and, possibly just as importantly whom your children would choose, are appointed as guardians.

Choosing a guardian

Your choice of guardian is very important and the decision should not be taken without careful thought.

Whilst you can choose just one person to act as the guardian, it is common for two people to be appointed - usually a couple. In making the choice as to who to appoint you may want to consider:

how will your children feel about the appointment? Do they get on with - or even know - the people you are choosing?
what is the current relationship between the proposed guardians and the children?
will those whom you choose offer a stable family environment in which to bring up your children?
do the proposed guardians share your values and ethical views?
do the guardians have experience of children and suitable parenting skills? This could be particularly important in the case of very young children,
will the guardians be able to cope with the responsibility of caring for children? For example, if the guardians are your parents will they be fit and able enough to cope with the pressure.

Having identified a suitable candidate, you will need to approach them and find out whether they would be willing to undertake the task should the need arise. You may also want to approach alternative guardians who will take over the responsibility should anything happen to those appointed first. Once the prospective guardians have accepted the role, you will need to include the appropriate term in your Will.

The role of the guardian

A guardian is responsible for attending to the day to day care, welfare, upbringing and education of your children in the event that you are unable to provide it. The guardian may also be appointed to act as the trustee for your children and to be responsible for their finances until they reach the age of 18.

For example, you may have been able to leave your children a substantial sum under your Will to pay for their upbringing and education which will be held on trust for them until they reach the age of 18. If you do make a guardian a trustee also, then it would be wise to appoint another, independent trustee, for example a solicitor, to prevent problems from arising if there is a disagreement between the child and the guardian as to what the child needs and also to guard against fraud or misappropriation of the funds.

Changing a guardian

Circumstances may arise where you need to change the person whom you have appointed as guardian. This may be for a variety of reasons including:

you no longer feel that the person is suitable to be your child's guardian;
the guardian has indicated that they no longer feel able to take on the role;
ill health of the guardian such that they would not be able to cope;
one of the intended guardians has died and you do not want the survivor to bring up your child alone;
you have appointed a couple to be guardians and they have separated or divorced;
the intended guardian has moved away from the area where you want your children to be brought up, left the country or undergone some other major life change;

Whatever the reason, there are two ways in which to change the appointment:

By rewriting your Will, or
By writing a codicil.

If the only change to your Will is a change of the name of the guardian, then a Codicil will probably be a perfectly adequate way of achieving this. However, if there are other changes, for example changes to gifts made to the proposed guardians as a thanks for what they will be doing, or a change in the trusts, then you would be well advised to avoid confusion and to change the whole Will.