Should I appoint a legal guardian?

If you have a child that is under the age of 18, you may wish to appoint a legal guardian to look after them should you die before they reach the age of majority.

A guardian will look after your child’s everyday needs, make important decisions about their education and health and often manage their financial assets. The guardian will acquire parental responsibility for the child and will be required to take parental decisions in your absence.

If no guardian is appointed, and a child’s parents die, it will be for the court to decide who should care for the child, and this may not reflect your wishes, and in extreme circumstances may result in your child being placed in the care of the Local Authority should no appropriate carer be identified.

Who can appoint a legal guardian?

Any person with parental responsibility can appoint a guardian. A child’s birth mother will automatically have parental responsibility for the child. Further, if a person is married to or in a civil partnership with the child’s mother at the time of the child’s birth, they will automatically acquire parental responsibility, as would being registered on the child’s birth certificate.

If the above circumstances do not apply and parental responsibility is not automatically acquired, there are a number of ways in which parental responsibility can be obtained, including, but not limited to:

• Marrying or forming a civil partnership with the child’s mother after the birth;
• entering into a parental responsibility agreement;
• through a court order; or
• by becoming the child’s guardian

Whilst it is recommended that an agreement is reached between parents as to who should be appointed as guardian in the event of both parents death, in cases where parents are separated, this can not always be achieved. If more than one guardian is appointed and both parents die, the guardians will have to make joint decisions in respect of the child’s upbringing. If no agreement can be reached between the guardians, the court may be required to step in.

What if I have children from a previous relationship?

In circumstances where a parent has children from a previous relationship as well as a current one, difficulty can arise where the parent wants all of their children to remain together should they die.

In this case, if the parent of a previous relationship is alive and is the only remaining person with parental responsibility, the legal guardianship will not come into effect and, unless there are good reasons why the other parent should not care for the child, the child of that relationship will be placed in their care.

Should it be the case that you wish for your new partner to have responsibility for all of your children, provided you are married or in a civil partnership, it is possible for them to acquire parental responsibility for the children from a previous relationship in two ways:

• by entering into a parental responsibility agreement. This will require the consent of
  everyone who has parental responsibility for that child; or
• through an order of the court.

Provided parental responsibility of the step-parent is acquired, should you die, parental responsibility will be shared between your current partner and the child’s other parent. If parental responsibility is not acquired, your new partner will have no legal right to make decisions in respect of the child, unless they were to obtain a court order to that effect.

Who should I appoint as the guardian?

There are a number of important factors to consider in deciding who you should appoint as a guardian to deal with the eventuality of your death.

It is important to discuss the appointment with a prospective legal guardian to ensure they understand what the responsibilities are and that they are happy to take on such an important role in your child’s life. Provided they are happy to take on the responsibility, it is worth considering the following to assess their suitability:

• whether the prospective guardian have children of their own and how would this
  impact upon their care of your child;
• whether the guardian’s family share similar beliefs to your family;
• location – does the guardian live close, i.e would the children need to move school
  and would they be able to see other family members on a regular basis;
• the health and age of the guardian – consider whether the prospective guardian has
  the physical and mental ability to care for your child;
• Financial stability – it is important to consider whether the prospective guardian has
  the resources to care for another child

It is also important to note that a guardian can appoint another individual to take their place as the child’s guardian upon their death. This may be something that you wish to discuss with the guardian prior to their appointment.

How do I appoint a guardian?

Appointment of a guardian is done by appointing a guardian in your will. If more than one person has parental responsibility for your child, you should agree on who you should appoint as guardian and both appoint that same person.

The guardian can then be appointed by either creating your will or updating your current will.

When does the appointment of a guardian take effect?

The appointment of a guardian will take effect immediately on the death of every party with parental responsibility for the child. The appointment of a guardian will cease automatically when the child reaches the age of 18.

If a Child Arrangement Order was in force, which provided that the person appointing the legal guardian was who the child was to live with, the appointment of the guardian will take effect immediately on this person’s death, but parental responsibility will be shared between the guardian and any surviving parent. 

Contact us

If you would like to discuss the appointment of a guardian or wish to create or update your
will, please do not hesitate to contact Tinsdills Wills, Trusts & Probate department. 
Alternatively, if your query relates to the parental responsibility of your children or an
application to Court regarding this, please contact Tinsdills Family department.