Choosing and appointing a guardian

It’s hard to imagine yourself not being there for your children but if you were to pass away prematurely, who would you want to be responsible for them?

Statistically, in the 21st century you are most likely to see your children and your grandchildren grow to maturity but unfortunately, some children have the sad experience of losing both their parents or carers.

The loss of life could happen to parents one by one, or a single car accident could wipe out a whole family.

If this were to happen, choosing and appointing legal guardians for your children could potentially be of great significance to their futures.

Why appoint a guardian for your children?

Considering who will care for your child and putting some kind of provision in place when you have young children, is good forward thinking for any family.

If you haven’t specified a guardian to care for your children, if you pass away before they are 18, the courts may have some difficulty in determining who is best placed to care of them.

Who is able to appoint a legal guardian?

To be able to appoint a guardian, you must have parental responsibility.

If you are the child’s mother, you automatically have that right. If you are the child’s father, you have parental responsibility in one of the following circumstances:
• Your name is on the child’s birth certificate
• You were married to the mother when she gave birth
• You have a parental responsibility agreement with the mother
• You have a parental responsibility order from a court
• You have a residence order

The role of the guardian

A guardian will be responsible for the day-to-day care of your child/children, including making decisions relating to their upbringing, education and welfare.

You can also make a guardian the trustee for any property you leave behind for your child/children. Any trust property held for a child will require 2 trustees.

Who to choose?

How and who to choose depends upon a large number of factors. Think carefully about who you would like to be a guardian because they will be your child’s parent until they turn 18.
When making a decision, consider these important points:
• The age of your children
• Their individual characters and needs
• Are they close to their siblings?
• Are they settled at school?
• Do older children have strong and vital friendships that could help support them?
• Where do your relatives live?
• What age are the grandparents?
• Do you have siblings with children of their own?
• Do you have particular views as to how you wish your children to be educated?
• Do you have a religion in which you wish them to be raised?

‘Make sure that you ask the person you have in mind and that they agree to the responsibility of being a guardian’

Guardians can be appointed by a parent in a Will, or in a written document.
More than one guardian can be appointed and a replacement guardian can be chosen in the event that the first cannot act.
If each parent appoints a different guardian, the two appointments will take effect together.
No appointment will take effect, however, while a parent with ‘parental responsibility’ for the child survives.

At FSM Solicitors we have a specialist team of experienced lawyers who can offer advice and guidance for your personal circumstances.

You will find contact details and locations here: Wills, Trusts and Probate team