Quickpoints
Guide to Guardianship
15th April 2010
It is important to have a will in place to ensure not only that your children are financially provided for after your death, but also to arrange the appointment of a guardian to care for the children day to day until they reach the age of 18 years.
What does a guardian do?
In the event of your death and the death of your partner, a guardian becomes responsible for raising the children. It is essential, therefore, that you obtain the consent of the nominated guardian before you come to see us to make your will to ensure that they would be happy to take on this responsibility.
Who can appoint a guardian?
You are able to appoint a guardian if you are a parent who has parental responsibility for that child, or if you are a previously appointed guardian. A child’s mother has parental responsibility irrespective of marital status. The child’s father automatically qualifies with parental responsibility if he has been married to the mother at any time since the child was conceived. In other situations the father may acquire parental responsibility for the child if –
(a) He is named on the birth certificate (but only if the birth has been registered on or after December 1st 2003),
(b) Under an agreement with the mother, or
(c) By Court order.
When a child is legally adopted, the adopted parents acquire parental responsibility.
Step-parents (including a civil partner of a child’s parent) can be given parental responsibility for the child either by agreement with the parents who already have parental responsibility for the child or by an order of the Court.
What does ‘parental responsibility’ mean?
‘Parental responsibility’ means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has.
Importantly, the fact that a person has parental responsibility does not necessarily mean they are under any legal obligation to support or maintain the child.
When the appointment of a guardian takes effect, they will acquire parental responsibility for the child themselves.
Who can be a guardian?
It is usual (and recommended) that the same person/s are appointed to be guardians of all your children. Whether that person is a member of your family or extended family or, a friend of the family is a matter of personal choice. The person you chose should be both physically and mentally capable of taking on this responsibility and you should take the time to speak to them before coming in to see us to ensure that they fully appreciate the role they have agreed to take on.
How many people can be guardians?
There is no limit but it is important that the guardians can agree on the best way of caring for your children which could be difficult with too many people involved. You might appoint a number of people with the intention that your children may in fact only be cared for day to day by one or two of them, but the others would have an interest in their welfare. At Stone King Sewell we advise our clients to appoint a minimum of 2 guardians dependent on the individual circumstances of the client.
Can I appoint substitute guardians?
It is possible if you wish, to appoint a reserve guardian/s who would step in if your previous choice of guardian died before you.
Can the guardians I appoint also be trustees for my children?
Guardians look after the children day to day but the executors and trustees of your will would be responsible for looking after any money due to the children.
The trustees will have wide powers to use money for the children's maintenance, education and benefit while they are under age, and that includes paying money to a guardian for the child's upkeep or even purchasing a home for them to live in.
Although guardians can also act as trustees some people like to keep the roles separate and appoint different people to care for their children and others to look after their money to avoid any conflicts of interest.
Can I change my mind and appoint different guardians?
At Stone King Sewell, we advise clients to review their wills every 3 years or earlier if your personal circumstances have radically changed since the drafting of your previous will.
Be prepared to revise your choice of guardian depending on your own and your appointed guardians change of circumstances. It may be, for example, that the guardian you nominated in your will is no longer suitable due to their age or physical incapabilities. It is important, therefore, to continually review your will to ensure that it is an up to date reflection of your wishes.
When does the appointment of guardians take effect?
The appointment of a Guardian will not normally take effect until after the death of the surviving parent if the survivor has parental responsibility. The surviving parent automatically becomes the sole guardian of the infant child concerned and the appointment of the Guardians is ‘deferred’ until the death of the surviving parent.
If the surviving parent does not have parental responsibility, the appointment will take effect on the death of the parent who has appointed the guardian. However, the surviving parent may apply to the court for parental responsibility and for the termination of the guardian’s appointment.
I have a ‘residence order’ in my favour, what is its effect?
The appointment takes effect immediately regardless of whether the other parent has parental responsibility. The Guardian will act jointly with the surviving parent. The surviving parent can apply to the court to have the guardianship terminated.
For further advice contact our Trusts and Estates Team or e-mail: privateclient@stoneking.co.uk
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