Guardians

Who can be a Guardian?

Anyone can be appointed as a Guardian in your locally produced Will if they are over the age of 18 years. Anyone who is appointed as a Guardian will have Parental Responsibility (PR) for your children and therefore can make decisions about matters including:

• choosing and providing for a child’s education; and/or
• consenting to any medical treatment for a child; and/or
• providing emotional and financial support for a child; and/or
• providing shelter and care for a child; and/or
• general maintenance i.e., clothes and food.

Appointing a Guardian in your Will is therefore a decision that should not be made lightly.

Can a sibling (Brother or Sister) be Appointed as a Guardian?

Yes, provided the sibling is over the age of 18 years. However, if the appointment were to come into effect when the Guardian themselves were still very young, then consideration would need to be given as to whether they would realistically be able to accommodate this huge responsibility. Caring not only for a child, both financially and emotionally, but also for themselves. Also, would this be in the best interests of minor children?

It is also advisable that a substitute Guardian be appointed. The reason for this is that if the appointed Guardian was not able to act, or simply did not want to take on the role for any reason, then there would be someone else able to step in immediately thereafter. If a substitute Guardian was not appointed, then this would mean that children could be placed into temporary care whilst awaiting a family member or friend of the family to come forward and be appointed by the Court to be their Guardian(s).

Can an Overseas Guardian be Appointed?

The short answer is yes. However, if children were born in the UK, the following points should be considered when deciding whether choosing Guardians abroad would be the best choice:

• Lifestyle – the children have been born and raised in the UK, so are familiar with a particular lifestyle, group of friends and school; and/or
• Stability – it is important for children to live in a stable environment; and/or
• Personality – do the selected Guardians have certain personality traits such as patience, warmth and trustworthiness?
• Capacity – do the selected Guardians have the mental and physical capability to raise children?
• would visas be required and who would care for the children until their visas are granted? Therefore, it would also be advisable to also appoint a TEMPORARY Guardian in your locally produced Will.

Can a Temporary Guardian be Appointed?

Yes, and this should be clearly stipulated in your Will when a Guardian lives in a different country and is either waiting to come to the UK, or alternatively where the children are waiting to move to the country where the Guardian lives.

Does a Father Automatically have Parental Responsibility?

A father will have automatic Parental Responsibility (PR) if:

• He was married to a child’s mother at the time that child was born; and/or
• He married the child’s mother at any point after that child was born; and/or
• They were unmarried, but he jointly registered the birth with the mother, and he is named upon the birth certificate; and/or
• Both parents completed a PR agreement granting parental responsibility to the father.

What if a Mother does not want the Father of her Child to be a Guardian after her Death?

If a father has Parental Responsibility (PR) and there is NOT a child arrangement order in place, then any appointment of Guardians in a mother’s Will would only take effect once BOTH she and the child’s father have died. If she died, then the father would automatically take PR for the child.

Nothing in a Will can vary this. Any dispute over the father’s suitability as a Guardian would then be a matter for the Courts to decide. A mother could create a letter of wishes to accompany her Will, which would provide guidance to her appointed Guardians and can include encouragement and explanation so that they can apply to the Courts for Guardianship if their appointment in her Will does not take effect.

Can a Monetary Gift be Left to a Guardian for a Child’s Benefit?

A monetary gift can be left to an appointed Guardian. However, if it is to be used for the benefit of children, then any money should be placed into a specific Trust. Otherwise, a Guardian could spend the money on themselves instead, or alternatively, accept the appointment as Guardian, receive the sum of money, and then step down as Guardian and there would be no recourse thereafter.

Alternatively, you may permit the Executors of your locally produced Will to reimburse a Guardian for any expenses which they can reasonably demonstrate have been incurred whilst they have been undertaking their guardianship duties.

Can a Guardian be Appointed for a Disabled or Vulnerable Adult?

It is not possible to name guardians for adults in a Will. If you wish to nominate someone to care for a disabled or vulnerable adult, then this should be set out as a non-binding expression of wish alongside a Will.

For further details WITHOUT consultation fees nor obligation, then please visit TRF Wills.