As parents, who would you entrust the care of your children to, were the unthinkable to happen?
This question is not one many of us are comfortable considering as it is likely to stir up a lot of emotion and sometimes, conflict between parents who may have differing views.
However, if you have parental responsibility it’s vitally important that you make plans for the care of your children in your Will in the event that both of you were to pass away. Not only is this in the best interests of your children, but it will also allow you to feel as confident as possible that you have made the best possible arrangements for your children’s future and security.
- What is a legal guardian?
- What powers does a guardian have?
- Who should I choose as a guardian?
- Do I have the right to appoint a guardian for my child?
- When does the appointment of a guardian take effect?
- How should the child’s finances be managed?
- Expert legal advice, here to help
A legal guardian is someone who has the legal authority to take care of your children should anything happen to you. Guardians are responsible for taking all parental decisions and can also be made responsible for managing your children’s property and inheritance (although responsibility for managing property and inheritances can instead be given to others).
A guardian, whether appointed under a Will or by the Court, has parental responsibility for the child or children within his or her custody. Upon appointment, the guardian has all the rights, duties, powers, responsibilities and authority that a parent of a child holds in relation to that child.
In practical terms this means that the guardian can make decisions about where your children live, who lives with them, any decisions relating to their education or health and is entrusted with protecting, maintaining and disciplining them.
Therefore, it is very important to choose a guardian who you feel is best equipped to make these important decisions for your children.
It is impossible to make generalisations about the relative or friend best suited to act as a guardian for your children. We all live in different circumstances and contexts so the choice of a guardian will likely be highly personal. However, some key considerations are likely to include:
- The age of your children – as your children get older the caring responsibilities will change, so your initial choice of guardian(s) may be a decision you wish to re-evaluate at some point in the future
- The age of the guardians - for most people, their first choice of guardian is the child’s grandparents. It is worth considering how old they are before making this decision.
- How many children you have and if the guardian(s) you choose would be willing to take care of them all – the more children you have the greater the financial implications
- How many children they have – if you choose a sibling or friends as guardians, do they already have their own children? If so, they may not be in a position to take responsibility for your children as well
- Attitudes and beliefs – do those you wish to appoint share the same beliefs or religion as you? Will they bring up your children to have the same values as you would?
- Financial situation – are your chosen guardians financially stable? Would they be willing or able to reduce their working hours to take care of your children?
- Where they live - if they live far away from you, will this mean that your children would need to move to a new school, away from family and friends and what impact could this have on them?
There is unlikely to be a perfect scenario. Ultimately the most important thing is that by appointing a legal guardian in your Will, you have peace of mind having made the decision as to who will look after your children in the event that you are no longer there.
You must have what is legally referred to as ‘parental responsibility’ in order to be able to appoint a guardian over a child under 18 years of age.
Parental responsibility means all the legal rights, duties, powers, responsibilities and authority which a parent has for a child by law.
A mother automatically has parental responsibility for her child from birth. A father will attain parental responsibility by either being married to the child’s mother at the time of the child’s birth, or by being named on the birth certificate.
If a father satisfies neither of these, but he would like to gain parental responsibility for his child, then he will either need to agree with the child’s mother for them both to sign a Parental Responsibility Agreement or he will need to apply to the Court for a Parental Responsibility Order. Other ways a father may obtain parental responsibility for his child include being named in a Child Arrangements Order as a person with whom his child will live or marrying the child’s mother after the child is born.
In the case of same-sex female parents, the woman who carried the child is treated as the child’s mother and automatically has parental responsibility for the child from birth. The second female parent will automatically have parental responsibility if she is a same-sex spouse or civil partner of the child’s mother at the time of the fertility treatment and consented to the treatment. Otherwise, she would acquire parental responsibility in the same way as an unmarried father.
In the case of same-sex male parents who have a child born to them through surrogacy, they may acquire parental responsibility in a slightly different way.
If one of the male parents is a ‘biological’ father of the child and is named on the child’s birth certificate, he will automatically acquire parental responsibility in the same way as any other unmarried father.
If any parents, same-sex or heterosexual, use a surrogate, the process is more complicated. For legal purposes, the surrogate mother who gives birth to the child is the child’s mother and automatically has parental responsibility for them. The intended parents need to obtain a parental order from the court, which will give them both parental responsibility and bring the surrogate mother’s parental responsibility to an end. Certain criteria must be met, which are complex and under these circumstances it is particularly important to seek specialist legal advice.
Step-parents may think they automatically gain parental responsibility for their step-child when they marry that child’s mother or father, but in fact, both biological parents would have to give their consent for the step parent to enter into a Parental Responsibility Agreement, obtain a Parental Responsibility Order through the Court, or be named in a child arrangements order as a person with whom the child will live.
The appointment of a guardian under a Will takes effect on the death of the last surviving parent with parental responsibility. For example, Anna and Bill are married and both have parental responsibility for their child, Cameron. In Bill and Anna’s Wills, they both appoint Anna’s sister, Dianne, as the guardian for Cameron. Should Anna pass away before Cameron reaches the age of 18, Dianne does not become the guardian for Cameron, as Bill remains the surviving parent with parental responsibility. Should Bill also pass away before Cameron reaches the age of 18, then Dianne’s appointment becomes effective.
The above example is straight-forward, however things can become more complex should two parents with parental responsibility appoint different guardians in their Wills – perhaps because they have separated.
Consider the same example, but that Anna appoints Dianne as the guardian for Cameron in her Will and Bill appoints his brother, Edward, as the guardian for Cameron in his Will. Should Anna and Bill pass away before Cameron reaches 18, whether simultaneously or otherwise, then both guardianship appointments become effective: Dianne and Edward are both guardians of Cameron and must now co-ordinate their efforts – possibly something Anna and Bill had not intended and perhaps not in Cameron’s best interests.
As an alternative to the above, you may wish to appoint a guardian in your Will subject to certain conditions. You could stipulate various conditions such as:
- The guardian you name may be appointed whilst they live in a certain region, perhaps where the child is settled
- The couple you appoint may only act as guardians whilst that couple is together
- The child’s grandparent should only be the guardian up to a certain age, at which point another individual would become the appointee.
It is impossible to account for all circumstances, but specific concerns or wishes should be drafted clearly and effectively.
Child Poverty Action Group estimated in 2018 that the cost to raise a child from birth to 18 years for a couple family is estimated at around £75,000, rising to £100,000 for a lone-parent family. Clearly, there are substantial costs involved in raising a child and you may, therefore, wish to give consideration as to how the guardians of your children would manage financially. At the same time, you will be concerned to ensure that your children’s assets, including any inheritance they receive from you and their other parent and any trust funds, are managed appropriately for their benefit.
Many children are left with significant assets of their own after the death of their parents, for example:
- They may have inherited significant assets under the Wills of their parents,
- The parents may have created trust funds for them (including any life insurance policies placed under trust).
Their grandparents may wish to make provision for them during their lifetimes or by Will. Whilst the children are young, it may be necessary for the income or capital of some of these funds to be used for their benefit (e.g. towards the costs of their upbringing). The ability to do this will depend on the terms under which the assets are held (e.g. the wording of the Will or trust document).
It is also relevant to consider who will be making decisions about management of the child’s finances. Assets left to a child under a Will would generally be managed by trustees appointed under the Will while the child is under 18 (often, but not necessarily, the executors of the Will). Assets left under a trust will be managed by the trustees. It is important to give careful consideration to who should manage the funds. Some people are happy to appoint the guardians so that they can manage the child’s finances as well as looking after them. However, it should also be kept in mind that the guardians may have a conflict of interest as they could benefit indirectly from use of the funds. Therefore, some parents prefer to appoint other trusted friends, family members or professionals to manage the funds (either alone or alongside the guardians).
Another important consideration is at what age children should be able to make financial decisions themselves. Where assets are left to them outright, they are generally able to access them at age 18. Some parents will be concerned that this may be too young, in which case it is possible to specify a different age in the Will or to use ongoing trusts. There are, however, some tax issues that may be relevant to this decision, depending on the circumstances.
For all of the above reasons, it is important for parents with significant assets to take appropriate legal advice to ensure that the documentation under which the child’s assets are held is worded appropriately. It is also sensible for them to leave the executors/trustees a letter detailing how they would wish them to exercise their powers and discretions.
Writing a Will is an important part of planning for your family’s future. We can help you make the best arrangements possible, ensuring through the provision of a guardianship clause, that your children’s best interests are fully considered.
Tees is here to help
We have many specialist lawyers who are based in:
Essex: Brentwood, Chelmsford, and Saffron Walden
Hertfordshire: Bishop's Stortford and Royston
But we can help you wherever you are in England and Wales.