Appointing Guardians is very important and it is a decision that some parents do struggle with. Some even put off making a Will because of it. In actual fact the appointment of a Guardian in a Will is only an expression of wish and it can be done in a separate letter. Difficulty in appointing a Guardian should not delay the writing of a Will because, if something does happen, it makes a bad situation even worse. It is still important to have Executors with authority to administer the estate and Trustees to look after the children’s inheritance. Guardianship can be settled later outside of the Will by equally effective means. For further information please use the READ MORE link, watch the video or call the helpline.
It is tragic if parents die leaving young children behind. Luckily this situation is very rare. If it does happen then people will need to know who will look after the children. If more than one guardian is appointed and they are independent of each other then it may be wise to consider making one of them a ‘second choice’ or alternative guardian. If that option is not taken and the Guardians cannot agree with whom the child or children will live, they can apply to the court for a residence order. However, it would be better to avoid that situation.
A person appointed as guardian is not subject to approval by the court or local authority. In fact there is very little control over the appointment. This is very different from the rigorous checks carried out for fostering or adoption. The court does have the power to revoke a guardianship where the guardian is unsuitable but clearly those appointing guardians must do so with care and consideration.
If a court has previously decided that one of the parents is unsuitable there might be a residence order in favour of the other parent. If a parent with a residence order dies having appointed a guardian then that guardianship will come into effect on their death, even if the other parent is still alive and has parental responsibility. This is because a court has already deemed them to be unsuitable. In normal circumstances (where there is no residence order) the guardianship will only come into effect when the last remaining parent with parental responsibility dies.
Guardians can only be appointed by a person who is a parent and who also has parental responsibility or a person who is already the guardian of the child. This means that a father without parental responsibility cannot appoint a guardian. Neither can a person appoint a guardian if they have parental responsibility but they are not a parent or guardian. The appointment must be made in writing, dated and signed and is most commonly done in a Will. However, as already mentioned, the appointment can be made otherwise with equal effect.
Where both parents die without appointing a guardian the court can appoint one. The court will also appoint a guardian if the person appointed by the parents is unable or unwilling to act.
Although a guardian can be appointed by any written, signed and dated document there are advantages to doing it in a Will. A Will is easily identifiable and will be under consideration at the time. However, difficulty in appointing a guardian is not a good reason to put off making a Will. If deciding who to appoint is difficult or agreement cannot be reached then at least make sure that there is a Will. That way there will be Executors to take care of the estate and Trustees to protect your children’s inheritance and make other essential provisions. Guardians may then be appointed effectively by other means at a later date.