A Guardian is the person who you choose to have legal responsibility for your child/ children where they are under 18 when you die. They will be responsible for making decisions such as where your child goes to school, where and who they live with and concerning their health.
A Guardian can only be appointed for a child under 18. The appointment is made by the parent or other person who has what is known as ‘parental responsibility’ (in effect legal responsibility) for the child.
How to appoint Guardians
The appointment of a Guardian must be:
signed by the person making the appointment.
The appointment does not need to be made in your Will, but it is a good idea to do this as a Will is less likely to be mislaid or forgotten than a less formal document. If you already have a Will which in every other respect is fine, you can appoint Guardians for your children in a simple codicil. In fact, many people set their Wills in place simply to ensure that they have appointed a Guardian to look after their children when they die.
When does the appointment take effect?
Generally, the appointment comes into effect on the death of the second parent (or whoever currently has parental responsibility for the child). If you haven't appointed a Guardian in your Will then your child could be taken into care temporarily if you die while the Court decides who is best placed to look after your child. This is one of the main reasons why making that decision yourself and recording it ideally in your Will is so important.
Who should you appoint?
A Guardian must be an individual; you cannot appoint a company to act as your child’s Guardian. You can appoint more than one individual and in fact, many parents choose a married couple to be Guardians for their children. However, this is not considered desirable as there can then be difficulties where that couple separate as to who your child then lives with. There are also potential issues where they do not agree/ have different parental styles perhaps to each other and to you. Therefore, the ideal position is that you appoint one person and then consider a substitute if they cannot act or die before you. Alternatively, provided you have at least one person appointed, should anything happen to them during your lifetime you would then need to ensure you amended your Will to include an alternative, where you hadn't already covered this in your Will.
So, one Guardian with a potential replacement is considered the most sensible approach. The more people you choose, the more problems or instability there could be for your child.
When choosing Guardians, you should consider the following factors:
How well do your children know the proposed Guardians?
How old are the proposed Guardians? Will they be able to cope with very young children or teenagers?
Where will your children live - will they have to change location and will they still be able to see their other family and friends?
Do the proposed Guardians have a house big enough for your children?
Do the Guardians have children of their own? Can they cope with more? If no children, would they be happy taking on a different lifestyle that includes children?
Do the proposed Guardians have similar beliefs, morals, religious and style of living as you?
Would your children be able to continue existing friendships and hobbies?
Do they have any medical conditions that might prevent them from acting as a Guardian?
Does the Guardian have the financial ability to raise your children if your estate cannot cover it?
It is important to note that your chosen Guardians do not have to accept the appointment, so, even though the likelihood of them ever having to take on the responsibility is slim, it is vital that you discuss this with them, and they accept the responsibility, before naming them in your Will.
By far the most usual scenario is that other family members are appointed as Guardians – grandparents, aunts or uncles being the most frequent choices. Godparents are also often selected. But there is no rule that says this has to be the case, and their appointment is never automatic.
It is best not to appoint as Guardians the people you are naming as your Trustees. These should ideally be different people. The Trustees will make financial provision for the children and then transfer the property to them when they reach the age to inherit. The Guardian will look after the children day to day and if they require further financial support in doing so they will approach the Trustees, who will have the independence to consider this fairly whilst also being conscious of their own obligations to the Trust and the children.
Is the appointment of a Guardian in a Will the final word?
You should review your appointment of Guardians every two years or so, just to ensure that the people you have chosen are still appropriate and willing to accept the responsibility. If you do decide to change the appointment, you can do so very easily by making a codicil to your Will.