Appointing Guardians

10th August 2022

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by Kim Neal, Solicitor, Private Client Department

As a parent I know that providing certainty for your child or children is of paramount importance. Although our own mortality can be a scary prospect, it is important that we ensure that the certainty we offer whilst we are alive is extended to our children in the (hopefully unlikely) event of our death before they reach adulthood. The best way to do this is by making a Will to appoint a person or people (Testamentary Guardian(s)) who will take care of our children after we are gone.

Without appointing a Testamentary Guardian, only the court can make decisions about who will be responsible for our children even if informal arrangements are agreed.  Appointing guardians gives peace of mind and generally speaking, is straightforward.

The appointment, as with Will validity in general, is required to be in writing, dated, signed by the person making the appointment in the presence of two witnesses who each attest the signature.

Deciding who to appoint is more tricky and requires consideration and conversation. It is possible to appoint more than one guardian for example, a married couple as joint guardians.

The appointment becomes effective only on the death of the person making the appointment and only if no one with parental responsibility for the child survives.

If there was a surviving parent or person with Parental Responsibility, the appointment takes effect when there is no longer a surviving person with Parental Responsibility. The appointment will be made in accordance with the appointment contained in the Will of the last person with Parental Responsibility to die. It is therefore of importance that each of the child’s parents agree the appointment of any Testamentary Guardians.

A substitute is worth considering in case your first selection has died before you or is unable or unwilling to be a guardian. Whilst your proposed guardian may happily agree to act if you die, the situation can feel very different if this actually comes to be. A guardian can refuse after your death by disclaiming the appointment. The disclaimer would need to be in writing, signed by the guardian and be made within a reasonable time.

The appointment ends automatically when the child reaches the age of majority, 18 years. While a child is under 18, there are a number of ways in which the appointment can be revoked before it takes effect or be ended after it has taken effect. Most commonly the appointment is revoked before the appointment becomes effective simply by making a new Will within which the former Will is revoked. If the guardian appointed is a spouse or civil partner (who does not have Parental Responsibility) on any subsequent divorce or the dissolution of the civil partnership the appointment is revoked unless specified otherwise.

Parents appointing guardians should consider the financial burden of bringing up the child. A guardian is not obliged to support a child from their own resources. If it is financially possible, parents might consider leaving a legacy to the guardians either as an expression of gratitude or with the intention of enabling the guardians to accommodate the child. A Letter of Wishes should be prepared to accompany the Will setting out the intentions for any funds left to the guardians. If, as is common, following the deaths of both parents, the residuary estate of the second to die is being held on trust for the child when they reach the age of majority, during the trust period before the child becomes entitled to capital, the trustees, often have powers to use that capital and any income arising for the benefit of the child e.g. school expenses.

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This article aims to supply general information, but it is not intended to constitute advice. Every effort is made to ensure that the law referred to is correct at the date of publication and to avoid any statement which may mislead. However, no duty of care is assumed to any person and no liability is accepted for any omission or inaccuracy. Always seek advice specific to your own circumstances.  Fraser Dawbarns LLP are always happy to provide such advice.

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