One of the biggest worries for parents is who will look after their children in the unlikely event that they both die before their children reach 18. By appointing a Guardian for your children you can be assured that they will be cared for by people you trust. The Guardian will then have legal responsibility for your children until they reach the age of 18.

It is a common misconception that godparents or other family members (such as grandparents, aunts, uncles, etc) will automatically be a child’s Guardian but this is not the case. In fact, where you have not appointed a Guardian the immediate position on your death may be that your child/ children are taken into care while the Court decides who they are of the view would be the most appropriate person to look after them. This may not be the same person as you would choose.

The role of a Guardian is to provide day-to-day care for a child as well as to make important decisions about that child’s upbringing; from education and welfare to religion and medical treatment.

It isn’t just the child’s parents who might have to consider appointing Guardians, but anyone who has parental responsibility for a child. So, if you are already a Guardian of a child you should consider what provision should be made for them if you die before they reach 18.

Issues can become more complicated when parents have divorced or separated as, although they may both still have parental responsibility for the child, they may choose different Guardians. If both parents die before the child is 18 this could result in two very different individuals being appointed as joint Guardians; that is an obvious cause of difficulties, not to mention upset for the child.

In order to avoid this happening, it is advisable for parents to choose the same people to be Guardians to ensure certainty and stability for the child. The appointment of Guardians in the Will should also only take effect when the second parent dies.

Guardians will not automatically be paid for looking after your children. Any money that you have left your children would be held on trust for your children. The people that you appointed as Trustees in your Will would manage those monies and could make funds available to the Guardian where it is in the best interests of the children to do so; and where it is to be used for their living costs, school fees and holidays.

Any monies held on trust in this way are ultimately for the children and cannot be used to 'pay the Guardian'. As such, if you would like some money to go directly to your Guardian for their own use, you will need to make a specific gift to them in your Will.

Further, if you would like your Guardian to use the gift for a particular purpose (for example, to move to a bigger house), you should include this in a letter of wishes (see below). Your Guardian will not be legally bound to use the money for this purpose, but it is more than likely that they will follow your wishes.

After you die, your Guardian will be responsible for the upbringing of your children. However, it is extremely helpful if you can leave a letter of wishes with your Will. This would typically be addressed to your Guardian and set out your wishes for your children on key issues such as schooling, welfare and religion. Although your Guardian is not legally bound to follow your wishes, it is likely that they will particularly if your choice of Guardians was made carefully.

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