How Do I Appoint A Guardian In My Will?

The tale of the orphan child having to carve out their own way in life without the love and support of their parents is one of the most common literary troupes. From Oliver Twist to Cinderella, Pip, and Heidi, orphaned and abandoned children were particularly beloved by 19^th century readers. However, in real life, being orphaned is a tragedy that can result in long-term psychological damage. Although the idea of you and your partner dying at the same time (which is statistically unlikely) is probably not something you want to think about, it is essential you make provisions in your Will to protect your children should such an event happen. You can do this by appointing guardians.

What is a guardian?

A guardian is one or more people appointed in your Will to look after your children should you and your partner/spouse die at or around the same time.

Guardians have parental responsibility, meaning they can make decisions regarding a child’s education, healthcare, where they live, and all day-to-day decisions relating to the child’s welfare. They effectively stand in the shoes of the child’s parents. Given this is the case, it is vital to choose someone you trust and who shares your values and love for your children to act as their guardian should the unthinkable happen.

How do I appoint a guardian for my children?

Section 5 of the Children Act 1989 provides:

An appointment of guardians by a parent or guardian must be:

• Made in writing.
• Dated.
• Signed by the person making the appointment or:
  • if made in a Will not signed by the testator, signed at the testator’s direction in accordance with section 9 of the Wills Act 1837, or
  • in any other case, signed at the direction of the person making the appointment, in their presence and in the presence of two witnesses who each attest the signature.

The wording of section 5 means that guardians can be appointed in a document other than a Will, provided the document is signed and witnessed. In practice, however, most parents choose to include the appointments of guardians in their Will, and we recommend this as a Will is likely to be stored in a safe place and be swiftly retrieved on the death of the parents. If guardians are appointed in a less formal document, it may be some time before the appointment is discovered.

What happens if I do not appoint guardians for my children in my Will?

If you die without appointing a guardian, the Court will appoint one. Whilst the process of deciding who should be your child’s guardian occurs, your children may be placed in foster care.

The Court will make its decision based on what is best for the welfare of the child. Although they will do everything they can to ensure your child will be placed with someone who cares for them, the person they appoint as a guardian may not be who you would choose. This is why taking control of the situation by appointing a guardian in your Will is so imperative.

How can I ensure my children’s guardian has money to support my children?

You may be worried about burdening a close family member or friend with the financial cost of raising your child or children. A guardian is not required to support your child with their own resources; therefore, it is up to you to ensure financial provision for your child’s care in your Will.

Most Will state that on the death of both parents, the residuary estate of the second parent to die is held on trust for any children. The executors act as trustees and typically have the power to pay expenses such as school fees, food, and clothing directly to the guardian for the child’s benefit. The child then gains access to the capital, normally when they turn 18 years old. Trustees could also be given the power to grant loans to the guardians in cases where significant capital is required, for example, extending an existing property or buying a new one to accommodate your children.

You could also leave your children’s appointed guardian a legacy in your Will to be used to financially support your children.

Finally, you could write a letter of wishes making clear how they would like the trustees to use their powers under the Will to provide financial support for the children. This would be a separate letter from any letter of wishes addressed to the guardians themselves.

Final words

Choosing a guardian and putting that choice in your Will is essential for ensuring your children are taken care of by someone you trust to have the same values and love for them as you do. If you do not have a Will or have a Will but have not updated it since having children, our Wills and Trusts Solicitors can advise you on appointing guardians and draft the necessary documents.To find out how our friendly team can help you with a Lasting Power of Attorney, please phone us on 01159 556 555 or fill in our contact form and we will get back to you as quickly as possible.