Appointing a guardian in my will

Appointing a Guardian in my Will

Appointing a Guardian is one of the most important reasons for making a Will for parents.

If you have children, you want to ensure they are protected in the event of something happening to you.  And you can do this by appointing a Guardian in your Will. But so many families haven’t done this simple thing.  Below we explore the reasons why you should, and how we can make it easier for you.

Why should I consider appointing a Guardian in my Will?

  • You name guardians in your Will so arrangements are in place for your children should something happen to you.  It’s really tough to think about, but so important to make sure your wishes are clear.
  • Guardians assume parental responsibility, making decisions on behalf of a child below the age of 18.
  • Parental responsibility is described here but simply put, it means protecting a child and keeping it safe. It covers decisions around where a child lives, school, medical treatment and religion. It also gives the right to apply for official documents for that child.
  • Many people assume that they can name whoever they want, or don’t need to name anyone as “family will sort it out”.  That isn’t true. If you don’t name someone, the courts can do so instead. 

Here are some common, often incorrect, assumptions about Guardianship:

The father automatically gets guardianship if the mother dies:

Your child’s father automatically becomes the legal guardian only if he has parental responsibility. This is only if the biological parents were married, if the father is listed on the birth certificate or has a court order to obtain parental responsibility

The children will just go and live with my mother who looks after them regularly anyway:

Unless your Will states this, it will not automatically happen.  Your family may have to apply to court to formalise this. In some scenarios there is even a risk that children are taken into care while guardianship is clarified

My ex-husband hardly sees the children so I will appoint someone else:

If the father has parental responsibility, he will automatically become guardian.  You may wish to record alternative wishes in case he doesn’t exercise this right or if you wish courts to have full information of the reasons for your choice.

I don’t need to appoint guardians as my children have godparents:

While godparents can have a large role in a child’s life, they have no legal rights.  If you do want the children’s godparents to be their legal guardians, you need to appoint them in your Will

We want to appoint different guardians, so the guardian will be the one appointed by the Will of the last person to die:

If the parents appoint different guardians, they must all agree on decisions relating to children – or ask a court to decide if they can’t agree

You may assume that if something happens to you, those closest to you will automatically take over if the worst happened. That’s not the case. If no formal arrangements are made, the court will decide who should be the legal guardian for each child.  This may take time, meaning a possibility of children being taken into care while these decisions are made. Ultimately the courts may decide to grant guardianship of your children to someone you wouldn’t have chosen for them.

Who should I choose as Guardians?

It’s always a tough decision.   It’s very emotional and can bring a lot of discussion for parents making their Wills.  Here are some things to think about when appointing a Guardian in your Will:

  • Age – how old will your Guardians be when your youngest child is 18?  .
  • Location – would your children need to move area and how will this affect them?
  • Space – can you guardian’s house accommodate more children?  Would they need to move?
  • Couples – what would happen if joint guardians separated?  Which partner would you want to be the guardian?
  • Views – do your guardians share your views and beliefs on raising children – culture, education, religion etc?

All of this can seem overwhelming.  I often advise my clients that rather than make it complicated they could think about who the right people are at this moment in time.  If your guardians’ circumstances change, then you can change your Will. But don’t put off making one because you can’t decide who the best people are in every scenario.

Finally, I advise you to talk to those you are proposing as guardians.  It’s important to make sure they are happy with taking on this responsibility

My final piece of useful advice is talk to the proposed guardians, make sure that they are happy to take on the responsibility.

How do I appoint a Guardian in my Will?

You can ensure your wishes about Guardianship are followed by making it clear in your Will. We can help you with this by talking through your options and providing guidance as needed.

You can have a free 30-minute consultation just to chat it through before making any commitments or decisions. 

Our service includes home visits, meaning you get a personal service and time to discuss things through in the privacy and comfort of your own home. You can find out more about Wills here

Call us on 01524 571032 or 07808 267140 or email us at info@morecambebaywills.co.uk