Incorrect Assumptions About Guardianship

A Will does not only deal with your assets, but also with the appointment of people to look after your children; known as guardians.

A guardian is required where a child is under 18 years of age and there is no surviving person with parental responsibility.

The sad fact is that at least one parent dies every half hour in the UK with dependent children and that 1 in 20 children will have lost at least one parent by the age of 16.

The appointment of guardians is a common reason to make a Will, where parents have children under 18 years old.  This will ensure that arrangements are in place for their children, should something happen to their parents.  Where no appointment has been made, it will be for the court to decide who to appoint as the legal guardian.  This clearly may not be who the parent would have chosen themselves.  In the worst-case scenario, the children could be placed in foster care while the court process takes place, adding additional stress at an already difficult time.

It is important to realise that where more than one person has parental responsibility for a child; that the other person will automatically assume full responsibility on death.  No guardianship appointment in a Will can take effect until all persons with parental responsibility have passed away.  At that point, the guardians take on parental responsibility.

A person with parental responsibility makes decisions on behalf of a child under 18, on such matters as where they live, which school they attend and what medical treatment they should receive.  It is extremely important that who is appointed as a guardian is given a great deal of consideration.

It is estimated that 1 in 5,000 parents will die while their children are still minors. Potentially requiring a guardian to be appointed at a time which will undoubtedly be one of the most traumatic events in their children’s lives.  It is essential that parents put in place arrangements that will guarantee certain, immediate and appropriate care for their children at such a time.

Research shows that over half of all adults in the UK do not have a Will. While the reasons for not having a Will varies, there are several widespread assumptions around dying without a valid Will, which simply are not correct.

Here are some common – and incorrect – assumptions relating to the appointment of guardians:

The father will automatically get guardianship if the mother dies

If the biological parents are not married and the father has not acquired parental responsibility prior to the mother’s death, then he will not automatically become the legal guardian. The father can acquire parental responsibility during the mother’s lifetime by marrying her, being listed on the birth certificate or obtaining a court order for parental responsibility.

My next of kin will automatically get guardianship

In the absence of a Will or other appropriate document appointing your next of kin as the guardian, this will not automatically occur. It may be necessary to apply to court to formalise such an appointment that is not correctly documented and as a result, it is possible that the children could be taken into care until the guardianship is clarified.

I do not want my ex-spouse to become a guardian, can I appoint someone else

If the mother was married to the children’s father when they were born, he will automatically have parental responsibility.  In such cases, or where the father has otherwise acquired parental responsibility, he will become the guardian, when she dies; unless such responsibility has been relinquished.  However, he may not choose to exercise his parental responsibility, so the appointment of a guardian in a Will is still important, just in case.

Parents want different guardians from each other – the guardians will be the ones appointed by the Will of the last to die

This is not correct.  When parents appoint different guardians; the guardians need to agree on the decisions relating to the children, where they cannot, it will be for the court to decide.  This can be both time consuming and costly and have a negative impact on the children.  It is important that parents discuss with each other the guardians that are appointing in their respective Wills.

I do not need to appoint a guardian as my children have godparents

This is also incorrect.  The appointment of godparents does not give them any parental responsibility in legal terms and so in the event of their parents’ death, they will not automatically become guardians. If you wish your children’s godparents to become their legal guardians, then such an appointment must be included in your Will.

Please visit our Wills & Testaments page for further information.