Nearly two-thirds of adults don’t have a Will with a named legal guardian for their children – this can mean that your child/children could be left with someone you wouldn’t necessarily have chosen yourself.
When creating or updating a Will with a Wills Solicitor, appointing a Legal Guardian through your Will ensures that your minor children won’t be placed into care while a Court decides who should look after them. Doing this yourself before it’s too late can save family members from huge emotional and financial strain in dealing with this situation at an already difficult time. It’s much better for the parents to decide than a Court.
Role and responsibilities of a child’s legal guardian
The role and responsibilities of a legal Guardian is very important. Children may, but won’t always, live with those appointed as their Guardians. Being appointed as a Legal Guardian means the Guardian is responsible for the safety and welfare of those children under that guardianship.
This can include making sure that the children attend school, are housed, fed, clothed, and looked after in the same way they would be by their parents had they survived them. In addition, a Guardian’s responsibility will ensure that the children are correctly supervised throughout their lives until they reach adulthood.
A Guardian’s role carries vast parental responsibility and should not be entered into lightly. Taking on such a vital role may well involve crucial financial, social and emotional implications – so should be discussed in detail between the Will maker and the proposed Guardians.
Now more than ever, the cost of raising children increases day by day. While many parents will have ensured that financial support is in place for their children in the event of their death, and Guardians aren’t directly responsible for financially supporting the children, it is an important factor when deciding on taking on the role of a Guardian and should be thoroughly discussed. Life insurance for parents should be considered.
When appointing Guardians, make sure you discuss with them what their role would be if anything were to happen to you. Your Will should set out clearly your wishes for your children’s care and upbringing if you die before they reach adulthood.
There are two essential roles in legal guardianship:
- Providing a home and daily care for the child
- Making decisions about the child’s welfare, upbringing, health and education
Who can be appointed as a legal guardian in the UK?
Family members are usually the ‘go-to’ choice for the majority of Will-making parents, particularly where very young children are involved. However, when the children are a little older, it may be more appropriate to appoint friends as they are more likely to share the parents’ lifestyles and ideas about their children’s upbringing.
If you don’t name Guardians in your Will and your children are orphaned before they turn 18, the courts will choose Guardians for them instead, not necessarily people you would have picked to look after your kids.
If you want to ensure that your children are looked after by people you trust, it’s essential to appoint Guardians through your Will. This will also ensure that those appointed as Guardians can take over immediately if something happens to you without going through a long and complicated legal process.
It’s important that when any parent appoints a Guardian in their Will that they obtain the consent of their proposed Guardian beforehand.
How to appoint a legal guardian
Appointing Guardians for your children is only possible if they are named as your chosen Legal Guardians in your Will. Before making this decision, you should talk to the individuals you want to be Guardians about their interests and availability. You may also wish to name substitute Guardians who will serve as replacements if one or more chosen Guardians die.
If you want to appoint Legal Guardians in your Will, follow these steps:
- First, decide how many Guardians you want to have for the parental responsibility of your children.
- Choose the individuals you want to be Guardians of your children and discuss this with them.
- Include the names of the people you want to be Guardians of your children in your Will and state their relationship with you.
- Sign your Will’s according to the strict legal requirements to ensure it is valid.
- Ensure your Will is stored somewhere safe where it can be found after you die. If a solicitor writes your will, they will usually store the original free of charge and give you a copy
Other potential issues to consider
Usually, Guardianship appointments take effect on the death of the second parent. Although not essential, it tends to make things easier when the same people are appointed as Guardians of all the minor children across both parents’ Wills.
The age of any proposed Guardian should always be considered as this can avoid potential problems which may arise from ill health or death. For the same reasons, it’s advisable to appoint more than one Guardian or have a substitute if something should happen to the first choice of Guardian.
The situation becomes more complicated when a Guardian is relied on to act only where one parent has died. This might be because the surviving parent is abroad, mentally incapable, in the armed forces, or if they refuse parental responsibility.
If there’s a dispute between any chosen Guardians appointed to act together, the Court will need to resolve the problem, which can be costly.
Key aspects to consider when thinking about the granted parental responsibility of appointed Guardians
- A Guardian’s role is the same as that of a minor child’s parents;
- Given the level of parental responsibility involved, consent should always be sought before appointing a Guardian;
- Financial provisions should be made for the children to assist the Guardians to raise them;
- The Guardian’s age and whether or not the Guardians appointed get on with each other;
- Have the Guardians made their own Will? This would ensure the future safeguarding of the children; and
- Failing to appoint Guardians in a Will means the ongoing care of any minor children will be decided by the Courts.
It can be difficult to understand the role of a Guardian and to be confident you’ve considered all aspects. Our team of Wills Solicitors can help to explain all aspects and guide you in each decision o ensure that your best interests and that of your children are protected.
