Most of us understand the importance of making a will. There are certain life changing events that might prompt us to take that important step and put a Will in place and the birth of a child is a common triggering event.
It is fair to say that the majority of parents have no difficulty in deciding who their money and assets should be left to. The difficult decision is deciding who to appoint as guardians, as nobody wants to consider the awful possibility of what would happen to their children if the worst were to happen.
Q. So what exactly is a guardian?
A legal guardian is appointed to care for a child where both parents die before the child reaches the age of eighteen. If you do not appoint guardians for your children and tragedy strikes, then an application must made to the court for a guardian(s) to be appointed, usually a willing family member or friends.
The appointment of a guardian bestows parental responsibility on an individual. Parental responsibility is defined as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and the child’s property”.
In simplified terms the guardian is stepping into the shoes of the parent. Hence the guardian will usually provide a home for the child or children and essentially bring them up. However, technically parental responsibility means the right and duty to make decisions about the welfare of a child which might result in a decision for the child to live elsewhere such as with another appointed guardian.
Q. Who can appoint a guardian in a Will?
Broadly a parent who has parental responsibility for a child. However the appointment of the guardian cannot take effect whilst there is a parent alive who has parental responsibility. In that event, the appointment will only take effect on the surviving parent’s death.
Q. Do two parents with parental responsibility have to agree to an appointment?
Strictly speaking no. Each parent can appoint a guardian of his or her own choice in his or her Will, but the appointment will not take effect until (as stated above) the surviving parent’s death. Hence there may be two separate guardians appointed by virtue of the two Wills. On the death of the last surviving parent both guardians will have parental responsibility and they will need to agree between themselves major decisions such as where the child will live, schooling etc., as both guardians will have been endowed with the rights and responsibilities of a parent.
Q. How many guardians can I choose?
Up to four people can be appointed as guardians although it may be worth noting that the more people you appoint could give rise to problems if the guardians are unable to agree. It may be worth discussing your choices with the guardians you have chosen and your families so that they are aware of your wishes.
A guardian must be over 18.
If you appoint guardians in your will, you can also appoint substitute guardians so that if the original guardians pass away, the substitute guardians will then undertake the role giving you certainty as to who would step in.
It is recommended that professional advice be sought from a suitably qualified Solicitor before making a Will and appointing guardians. We offer fixed fees for Wills – please contact us on (01267) 237441 to find out more.