Appointing Children’s Guardians in your Will

If you have children aged under 18, when making your Will it is important to appoint children’s guardians. The guardians would usually look after the children only if both of their parents had died. Making this decision during your lifetime means that you are in control of who is appointed as guardian, and it also gives you the opportunity to consult your chosen guardians and make sure that they would be happy to take on the role. A guardian must be over the age of 18 and mentally capable, but otherwise you can appoint anyone whom you believe would be suitable to care for your children after death.

What are parental rights?

Parental rights are defined by section 3 of the Children Act, 1989 as, “all the rights, duties, powers, responsibilities, and authority which by law a parent of a child has in relation to the child and his property, and also includes the rights, powers and duties which a guardian of the child’s estate would have had in relation to the child and his property”. This includes the right and duty to care for the child, to provide a home for them, to determine where the child should live, to ensure that they receive an appropriate education whilst of school age, to appoint a guardian, to consent to medical treatment and to name the child.

How do you acquire parental rights?

When a child is born, it’s mother automatically acquires parental rights. For the father, matters are not always quite as straightforward. The child’s father will only acquire parental rights automatically if he is married to the mother when the child is born. An unmarried father does not it obtain parental rights automatically. He can acquire parental rights after the child’s birth, either by marrying the child’s mother, by entering into a parental rights agreement with the mother, by jointly registering the birth, or finally, by obtaining a parental rights agreement from the court.

Parental rights are also now automatically granted to a woman’s female spouse or civil partner if the woman conceived using artificial insemination whilst the couple was married/in a civil partnership, as long as the female spouse/civil partner consented to the treatment.

Step-parents may obtain parental rights either by entering into a parental rights agreement with the parents, or alternatively by applying to court for an order granting the parental rights. They do not acquire parental rights automatically.

Giving guidance to your children’s guardians

When appointing your children’s guardians, it is a good idea to include a letter of wishes to the guardians setting out how you would like your children to be brought up. This could include them continuing their education at the same schools, for example, or perhaps continuing to observe certain religious beliefs. These wishes are not binding on the guardians, but are helpful guidance from the parents about how they would like the children to be brought up.

Why appoint children’s guardians?

If you do not appoint guardians of your children in your Will and you die leaving minor children, then a court will have to appoint their guardians instead. If there is only an informal agreement with friends and relatives in place about who would look after the children in this scenario, nobody will have the necessary formal, legal parental rights for the child, and so there would be no one in place with the authority to make decisions about the child’s maintenance, and education. Typically, court-appointed guardians are willing family members, but they may not be those whom the parent would have are appointed if given the choice. There may also be a delay of a number of months between your death and the court appointing a guardian, and during that time, the children could need to be taken into foster care until a decision is reached, if there are no appropriate family or friends to look after the child in the meantime. This is also the case if the appointed guardian had predeceased the testator, so you should also consider appointing a substitute guardian to be on the safe side.

How many guardians should I appoint?

You can appoint more than one person as a guardian, but it is best if both guardians live at the same address for practical purposes. Often, a couple will be appointed. It is usually best to avoid appointing a ‘committee’ of various guardians, as that can lead to arguments if the guardians disagree about aspects of the child’s upbringing.

What factors would a court consider when choosing guardians?

If a court is appointing a children’s guardian then the court’s main consideration will be the best interests of the child, and it will aim to make the decision that will cause the least disruption. Relatives who live nearby are likely to be favoured, as that would allow the children to stay in the same area and continue to attend the same schools. The court will also consider the child’s own wishes, taking into account their age and level of understanding, the child’s relationship with the prospective guardian, how capable the guardian is of meeting the child’s needs (the guardian’s age, any other children they need to look after etc), any recorded wishes of the deceased parent and the wishes of the children’s nearest relatives.

Divorced couples and children’s guardians

More complex guardianship situations can arise with divorced couples, where, for example, there is a ‘Child Arrangements Order’ (“CAO”) (formerly known as a ‘residence’ or ‘contact’ order) in place in which the testator was named as a person with whom the child was to live, or was the child’s only legal guardian. If that person dies, appointing a guardian in their will, then the guardianship appointment will take place immediately on their death, even if the surviving parent has parental rights. In that scenario, the guardian will share parental rights with the surviving parent, although their appointment will not take effect immediately if the surviving parent with parental rights was also named in the CAO as someone with whom the child is to live. If there is a dispute, either the surviving parent or the guardian can make an application for a CAO, and a parent can also apply to have a guardianship terminated. As before, the child’s welfare is the court’s main concern when dealing with these cases.

To avoid any difficulties along these lines, it is best for parents, even if they are divorced, to coordinate the guardianship appointments in their Wills and ideally to appoint the same guardian(s) in each of their wills. Usually, the appointment will be drafted so that it will only take effect on the second death.

How does a guardianship end?

A guardian does not have to accept their appointment and may decide that they don’t wish to act, in which case they must disclaim the appointment relatively promptly and a court application would then be made to appoint replacement guardians, if there are no substitute guardians appointed in the Will.

Guardianship ends automatically when a child turns 18 or if either the child or their sole guardian dies whilst the child is a minor. A guardian can also be removed early by court order.

What if my children’s guardians live abroad?

You can appoint guardians who live abroad for your children, but this may not be the most practical solution. The guardian would have no automatic legal right to live in the UK simply because they are appointed as a guardian, and nor would the child automatically be able to leave the UK to move abroad with the guardian. It would be necessary to apply for visas, and whilst these were being organised, again there would be the possibility that the child would have to be cared for by a foster family. In order to move a child abroad, it is necessary to obtain the appropriate consent under the Child Abduction Act 1984.

A court may feel that removing a child from the UK would not be in the child’s best interests, and may seek to appoint a different guardian based in the UK in that scenario, especially if the child has surviving UK relatives.

How should I provide funds for my children’s guardians?

Typically, if a child’s parents have died, the cost of bringing up the child would be met not by a gift in the parents’ wills to the guardians themselves, but instead, by a gift to a trust for the children’s benefit. The parents would appoint trustees to look after the money in the trust for the children’s benefit until they attain adulthood. In the meantime, the trustees would have the right to advance money from the trust to provide for the children’s needs as they are growing up. There would typically be a letter of wishes sitting alongside the Will setting out the parents’ wishes in this regard. Parents do often choose to appoint their children’s guardians as trustees of their children’s Will trust, but there should also be at least one other trustee in order to provide an element of independence, and to act as a check and balance on how the funds are used for the children’s benefit.

Call Chiltern Wills on 01494 708688 or email info@chilternwills.com for a free, no-obligation discussion about making your Will, Lasting Powers of Attorney or how we can assist you with Probate. Chiltern Wills is a boutique Will writing practice based in Beaconsfield and run by former London solicitor Rebecca D’Arcy.