APPOINTING GUARDIANS IN YOUR WILL

The provision for a guardian in a Will is something which should be considered by all parents who have children under the age of 18. A child's guardian is someone who is appointed to take over responsibility for the child in the event of the death of the child's parent or carer. The appointment is not only necessary if the child has property or money but also to provide day-to-day care, as the guardian will have the right to decide on the child's upbringing, health care, religion and education. It is very important to ensure that the right person or persons are chosen to act as guardians and are appointed in accordance with the law. The law on the appointment of guardians changed radically as a result of The Children Act 1989 (the Act).

WHO MAY APPOINT A GUARDIAN?

This is governed by the Act which provides that the appointment of guardians may be made by: (a) a parent with parental responsibility for the child, or (b) an existing guardian of the child, or (c) by a court in family proceedings. The appointment generally becomes effective when the person who makes the appointment dies. At that time the guardian will acquire parental responsibility for the child.

WHO CAN BE A GUARDIAN?

A parent with parental responsibility for a child or a properly appointed guardian, may appoint one or more individuals to act as guardian or guardians for the child on his or her death. Guardians can only be appointed in relation to a child under the age of 18 years.

THE ROLE OF A GUARDIAN

A properly appointed guardian has parental responsibility for the child concerned. He or she has all the decision-making powers over upbringing inherent in the concept of parental responsibility and the right to undertake physical care of the child except where this is withheld by virtue of a residence order in favour of someone else. It is intended that guardians should become parents to the child in the fullest sense since they are in effect complete replacements for deceased parents.

                                  

THE APPOINTMENT OF A GUARDIAN

If, on the death of the appointor (even if the parents are separated or divorced), there is:

· a surviving parent with parental responsibility; and

· the deceased did not have a residence order in his or her favour,

the appointment of the guardian does not take effect until the death of the surviving parent. Then effective appointments by both parents will take effect simultaneously: this can lead to conflicts between the two separately appointed guardians which the court may have to resolve. If on the death of a parent with parental responsibility, the child either:

· has no surviving parent with parental responsibility; or,

· immediately before the death of the appointor, a court residence order was in existence in the appointor's favour regarding the child, then the appointment of the guardian takes immediate effect on the death of the appointor. A properly appointed guardian of a child may also appoint another individual to take his or her place as guardian on his or her death. However, if there is a surviving parent with parental responsibility and the guardian does not have a residence order in his or her favour then the appointment by the guardian will only take effect on the death of the surviving parent.

HOW IS A GUARDIAN APPOINTED?

The appointment by a parent or guardian will not be effective unless it is made in a written document and dated. It must also be signed by the person appointing the guardian. An appointment made by Will or other testamentary document signed at the appointor's direction must be properly witnessed by two witnesses in accordance with the law. The court can also appoint a guardian if either: i) a child has no parent with parental responsibility, or ii) a residence order has been made in favour of a parent or guardian who has died whilst the order was still in force.

The former applies to orphans, or the children of unmarried fathers without parental responsibity. The latter applies even though the child may have a surviving parent, without a residence order. The court is only likely to appoint a non-parent as sole guardian when the deceased, having a residence order in his or her favour, did not make a lifetime appointment of guardian and a third party is likely to be better able to care for the child than the surviving parent.

CAN THE APPOINTMENT BE REVOKED OR REFUSED?

During the lifetime of the person who has made the appointment, he or she may revoke the appointment in the following ways:

i) by a further appointment of a guardian which is clearly inconsistent with the continuation of the first appointment

ii) by specifically revoking the appointment in writing

iii) if the appointment is made other than in a Will or Codicil, by destroying the original written document which provided for the appointment of the guardian, with the intention of revoking the appointment

iv) by revoking the Will or Codicil which contains the appointment

The Court has power to revoke the appointment at any time. In addition, the person who is appointed guardian may refuse the appointment by any document in writing signed by him or her made within a reasonable time of his or her first knowledge that the appointment has taken effect. Upon divorce, any appointment of a former spouse as guardian in a Will would be revoked automatically by law. However, if such a parent has parental responsibility, his or her rights over any children would be unaffected. However, any appointment by Will of a step-parent (without parental responsibility) as guardian is affected by any later divorce. The result is that, unless there is anything in the Will to the contrary, the appointment of a step-parent as guardian in such circumstances would be revoked.

ADVANTAGE OF APPOINTING GUARDIANS BY WILL

Although the appointment of a guardian can be made in any written document, there is an advantage in raising the appointment in a Will, since this document is likely to be preserved, easily identifiable and be considered quickly by those dealing with the estate of the parent after death. If a Will is revoked at any time and contains a Guardian clause, the appointment of the guardian will also be revoked.

                                    

CHOOSING THE RIGHT GUARDIAN – PRACTICAL MATTERS

Each parent will have their own beliefs and priorities regarding the care of a child and it is these considerations which are at the heart of choosing a guardian. When deciding who should take care of your child in the event of your death, it may be helpful to bear in mind the following points:

i) Do you trust your guardian to raise your child as you would’ve wished?

ii) Will your guardian’s lifestyle be able to accommodate your child? If not, are they prepared to make changes?

iii) Does your guardian have children the same age? Does he or she have experience of parenting?

iv) Is your chosen guardian fit enough to cope with the demands of a child over a number of years, particularly a young child?

v) Is your guardian known to your child? Do they get on well together?

vi) Does your guardian get on well with other members of your child’s family?

vii) Does your guardian live locally? Will your child have to move school?

viii) Will your guardian come to live in your home? If not, do they have suitable accommodation for a child?

ix) Is there likely to be a dispute over your choice of guardian? If so, is your guardian prepared to deal with it? Is there another choice you could make to avoid such a dispute?

x) If you (or you and your partner) are choosing more than one guardian, will they be able to work well together? Is it clear with whom your child will live?

xi) Does your guardian share those values which are important to you - perhaps in relation to religion or education?

xii) Have you discussed the proposed appointment with the guardian and established that he or she would be willing to accept the appointment if the time comes?

xiii) Is it best to put down on paper your thoughts and wishes regarding your childrens upbringing in a ‘Letter of Wishes’ to be kept with your Will?

OTHER MATTERS – FINANCIAL PROVISION FOR YOUR CHILD

When parents die, the issues relating to the care of their child are necessarily related to the financial arrangements that are to be made for that child. There are many ways of organising finances on behalf of a child and the most appropriate course of action will depend on the age of the child, the amount of money involved and all the surrounding circumstances. However, some of the questions that can be addressed in a well-drafted Will are as follows:

i) How will your child’s upbringing be paid for?

ii) Is money to be held in trust for the child beyond the age of 18?

iii) Will your chosen guardians also be the trustees of your child’s fund? If not, can the guardians work well with the trustees?

iv) Do you wish to make a direct gift to the guardian for his or her own benefit?

v) If you own a property, is it to be sold after your death? If not, how will its maintenance to be paid for?

vi) What can the trustees spend your child’s money on before he/she reaches 18?

vii) Will there be inheritance tax? Do you wish to take steps to minimise any such tax bill?

Giving careful thought to the above questions leaves your chosen guardians better placed to handle a difficult situation, and also eases the transition for your children if the worst ever happened.