Legal News | 14.05.20

Private Client Update

Rise of the Guardians?

The need to appoint guardians to look after your children is often overlooked in modern society, as there is an incorrect assumption that they will be looked after by your nearest and dearest in the event that parents die before their children reach the age of 18. This is not necessarily the case.

Why do I need to appoint Guardians?

If both parents die before their children reach the age of 18, then the children are classed as orphans. If you have not appointed your chosen guardians, for example in your Will, then the Court will decide on the appointment of their guardians. How confident are you that the Court will choose the same people that you would have chosen to take care of your children? What happens to the children whilst the Courts are making a decision?

Who can appoint a Guardian?

A person who has Parental Responsibility* for a child can appoint a guardian for that child in their Will. The appointment of guardians does not take full effect until both parents die where there are two parents with parental responsibility.

How do I appoint Guardians, and do I have to let them know I have chosen them?

You can appoint legal guardians for your children in your Will. We recommend that you speak with the people you would like to appoint to confirm they are willing to take on this responsibility.

Ideally, parents will appoint the identical guardian(s) for their children in their Wills. An appointment of guardians still stands even if you separate or divorce, but if you remarry then your entire Will is revoked. Wansbroughs can advise you on this.

You may also like to consider leaving your chosen guardians a letter to sit alongside your Will giving further guidance about how you wish your children to be raised, who you want them to see regularly, hopes for education or religious instruction.

Such a letter can also guide those you have chosen to manage your estate after your death as to how they should use funds to benefit your children. For instance, you may express a wish for payment of school fees, accommodation, or foreign travel for your children.

*Parental Responsibility?

A child’s mother always has parental responsibility for her child. If the parents of a child were married when the child was born, then both parents automatically have parental responsibility.

If the parents were not married when the child was born, the mother still automatically has parental responsibility and the father can acquire it in a number of circumstances. For example:

• If he subsequently marries the mother
• If he is registered as the child’s father on the Birth Certificate and the child was born after 1 December 2003
• If he enters into a Parental Responsibility Agreement with the child’s birthmother which should then be filed at Court.
• By obtaining a Parental Responsibility Order or a Child Arrangements Order through the Court.

To find out more, please get in touch with your usual Wansbroughs contact or email the Private Client team at wealth@wansbroughs.com