Appointing guardians for minor children - what you need to know

It is sensible for parents to appoint one or more individuals (known as guardians) to take care of their children in the event that they both die before their children reach the age of 18.

We briefly summarise below the key points that parents should consider when appointing guardians and some complexities that can unintentionally arise.

How do I appoint a guardian for my child?

Only a person with parental responsibility can appoint a guardian. A child’s mother automatically has parental responsibility for her child from birth. In contrast, the child’s father will only have parental responsibility if he is named in the child’s birth certificate, is married to (or subsequently marries) the child’s mother, he enters into a parental responsibility agreement with the mother or he obtains a parent responsibility under a court order.

To be valid, the appointment must be in writing, signed and dated by the person making the appointment (or, in some circumstances, at their direction). Guardians are therefore most commonly appointed in a parent’s Will, but can also be appointed in a separate document provided that the correct formalities are followed. Sometimes, even a Will that is otherwise invalid (e.g. if not witnessed correctly) can still validly appoint guardians if it otherwise complies with the legal requirements to appoint a guardian.

If both parents die without having appointed guardians, only a court can formally appoint a guardian, which can be costly and time consuming.

Who should I appoint?

Only individuals can be appointed as guardians (i.e. it is not possible to appoint trust companies as you can for executors and trustees). Parents can appoint one or more individuals to be guardians; most commonly, parents appoint a married couple that the children know and trust (e.g. their parents or a sibling). Where only one guardian is appointed, it is advisable to appoint a replacement to cover the event whereby the original guardian is unable or unwilling to act.

Like executors and trustees, an individual cannot be compelled to act as a guardian. It is therefore important to discuss the appointment with the proposed individual(s) before making the appointment.

When does an appointment of a guardian take effect?

An appointment of guardians will take effect once both parents with parental responsibility have died (so for example it will not take effect on the mother’s death if the father has parental responsibility), unless a Court has made a Child Arrangements Order in favour of the now deceased parent stating that the child was to live with them and not the other parent. An appointment of a guardian will still take effect if someone other than a parent has parental responsibility for the child.

Guardians can only be appointed for children under the age of 18. Once the children reach this age, any such appointment will automatically end.

Importantly, if the father does not have parental responsibility for the child and the mother dies having appointed a guardian (in her Will or otherwise), that appointment will take place immediately, even if the parents were together and the child is living with their father. It is therefore important to consider whether steps should be taken now to ensure that an unmarried father has parental responsibility, both to enable him to make important decisions about the child during the mother’s lifetime, but also in the event of the mother’s death.

Parents can impose conditions on the appointment taking effect and appoint a substitute guardian if, for example, their first choice of guardian pre-deceases them or does not meet the conditions they have set. However, they cannot appoint successor guardians to take over in the event that their first choice of guardian can no longer act or ceases to fulfil the parents’ conditions after the appointment has taken effect. The first-choice guardian can, however, appoint their own successor and it would be sensible for the parent to discuss this with them and record their wishes in a Letter of Wishes.

What does a guardian do?

Once an appointment takes effect, a guardian will acquire parental responsibility for the child. This broadly gives them the same authority that a parent would have had in relation to the child and their property and enables them to make important decisions about the child’s life and care (such as in relation to education and medical treatment).

It is advisable for parents to prepare a Letter of Wishes to their guardians recording their wishes regarding the upbringing of their children and the key principles that they would like the guardians to take into account. These often cover a range of topics, including education, religion and personal values, but can include other topics such as music preferences, extracurricular activities and even sports teams that they would like their children to support.

Guardians are not obliged to financially support a child from their own resources and so parents should ensure that funds are made available to support them on their death. In many cases, parents leave their estates on trust for the benefit of their children and direct their executors and trustees to apply capital and/or income to support their children until they become adults. Alternatively, parents may choose to leave a fund directly to their guardians.

What happens if parents appoint different guardians

If both parents (with parental responsibility) appoint guardians, both appointments will take effect on the death of the second parent, unless their Wills provide otherwise. If the parents have each named different guardians, both sets of guardians will be required to work together and agree on matters relating to the child’s upbringing. This can create significant difficulties and confusion and, if agreement cannot be reached, it may be necessary to involve the Family Courts to resolve any disputes.

This scenario may occur when parents have separated, but can also arise where parents initially appoint the same guardians but one parent subsequently dies and the second parent changes their choice of guardians (for example if they re-marry and appoint their new spouse). It is therefore important for parents, whether separated or together, to discuss these issues and agree a coordinated approach where possible.

It is possible for parents to confirm that only the appointment in the Will of the second parent to die will take effect – this can prevent these issues from arising and can also take into account changes in circumstances (e.g. grandparents originally named in both parents’ Wills getting older and becoming less suitable or able to care for the child).

What if someone doesn’t agree with the appointment?

Ultimately, any disputes regarding the appointment of guardians, parental responsibility or the care of a child may be referred to the Family Court. However, it would be sensible to first consider other out-of-court options such as mediation to try to resolve any issues.

If the dispute does proceed to Court, the welfare of the child will be the court’s paramount consideration.

As we said at the outset, it is very important for parents to ensure that they have thought about their wishes for their children’s care if the parents were to die and sensible to appoint guardians to step in for them. However, you will see from the above that there are a number of potential pitfalls and complexities that can result in unexpected or unintended circumstances if not properly thought through with the benefit of advice.

If you have any queries in relation to any of these matters, please contact Felicity Chapman or Tom Denny.