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Guardian appointments in wills

Making a will is never usually at the top of a ‘To Do’ List but it is essential, even in better times.

Many parents are considering difficult issues in what is the challenging situation with the COVID-19 pandemic.

One issue that all parents must consider is what arrangements should be made for their children if the worst were to happen. Making a will is never usually at the top of a ‘To Do’ List but it is essential, even in better times.

See our past articles Unmarried couples and Wills - know your rights and Will my spouse/civil partner automatically inherit if I die without a will?

How do I appoint a guardian?

When drafting a will, you can appoint a guardian for any children under the age of 18. The first thing to do is to check any will that you currently have in place and whether it contains a suitable clause. If you don’t have a will in place or it lacks such provision, now may be the time to consider having one drafted.

Why appoint a guardian within your will?

It provides peace of mind in the event that you pass away before your child reaches the age of 18.

What does it mean to appoint a guardian?

Appointing a guardian means that you are granting someone parental responsibility of your child (PR) should you no longer be around.

Having PR means that the guardian is then entrusted to make important decisions about your child’s life in all areas, including education and medical treatment. If somebody has care of a child but has not been granted PR, they only have a limited legal right to do what is reasonable in all the circumstances to safeguard or promote the child’s welfare.

What if both parents pass away without appointing a guardian?

In this case only the court can appoint a guardian for the child. You both may have agreed informally with friends and relatives about what would happen but nobody would have ultimate PR.

Who can be a guardian?

Only individuals, rather than organisations, can be guardians, although it is possible to appoint more than one guardian, as joint guardians.

Only somebody who doesn’t already have PR for your child can be appointed a guardian.

Your appointed guardian may not accept the appointment and therefore before appointing them it would be a good idea to discuss it with them so as to ensure they would be willing to take on the responsibility.

When does a guardian provision within a will take effect?

The appointment would usually take effect on death but if there is a surviving parent with PR, they would automatically take responsibility for the child. A guardian provision therefore only comes into effect when there are no surviving parents with PR.

If we are co-parenting but separated how would a guardian provision work?

As with anything, if possible, it is best to try and take a co-ordinated approach, discuss and appoint the same guardian within your respective wills.

If you both appoint different guardians, upon the first parent dying the appointment under their will would not take effect as the child would still have a surviving parent who has PR.

Should the second parent also die before the child reaches 18, it would be the appointment of a guardian within the second parent’s will which would take effect.

If the content of this update raises any issues for you, or you would like to discuss, please liaise with Fiona Turner at fiona.turner@weightmans.com or Becki Smith at becki.smith@weightmans.com.

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