Guardians

Choosing Guardians for children is an area that people generally shy away from as it’s such an emotive subject. However, if you have children (be they your own, adopted or step-children) it is crucial that you make complete provision for them should the worst happen and both of the parents die and your children are left orphaned.

It is extremely important to name legal Guardians in your Will otherwise, should both parents die without leaving Wills, the Courts will be responsible for deciding where your children will live. No matter what you might have verbally agreed with a family member or friend.

Naming Guardians in your Will is a relatively simple process, but it’s one that needs to be done with due consideration and thought. Below are some key points to take into account:

You can only appoint Guardians if you have parental responsibility of a child. This is particularly important for fathers, as the rules vary depending on the circumstances. If one parent dies and the surviving parent has parental responsibility, they will automatically assume responsibility of the children.

However, if in the event of your death you want someone who does not have parental responsibility to take care of your child, you must ensure this is clearly stated in your Will. Further, you should discuss this with the person that does have parental responsibility and gain their consent. This agreement should be legally documented and a copy kept with your Will. Without the necessary legal documentation it’s possible that the Courts may overturn your Will and decide where your child will live.

Guardians will be responsible for your children until they reach 18 years old in the following areas:

• Providing daily care and housing

• Deciding on options for your child’s education, health and welfare, religious, social and general upbringing

• Ensure that important events such as birthdays, religious holidays, festivities and other pertinent family events are noted and celebrated

• It’s possible that Guardians will also be trustees for your children, responsible for assets or money left for their wellbeing and upbringing. See our Trusts and Trustees page for further information on this subject

You can name a single Guardian, but many people prefer to appoint two – usually a couple. It is best to choose Guardians you know would be willing to take on the commitment of caring for your children and people who already have a relationship with them. You should discuss this appointment with your chosen Guardians before including them in your Will to be sure that they are happy with this arrangement. You can also name an alternative set of Guardians in case your chosen Guardians pass away.

Ask yourself some key questions before appointing a Guardian to help identify the people who will best provide a positive future for your children. Matters to consider include:

• Can you chosen Guardians to provide a stable and comfortable home?

• How is their relationship with your children?

• Where do they live in relation to your child’s school, friends and other relatives?

• Are they likely to be trustworthy and responsible trustees?

• How old are they and do they have any health issues?

• Do they have children or their own or are they planning a family in the future?

• Do you want to discuss this decision with your children?

It is also a good idea to set up trusts for your children in case this eventuality happens, as the responsibility for Guardians is likely to be an expensive one. See our Trusts and Trustees page for more information.

You may want to change a Guardian in your Will for a variety of reasons including:

• The Guardian moving abroad

• The death of a named Guardian

• A change in relationship of Guardians, eg. they divorce or separate

• The Guardian no longer wishes or is unable to carry out the responsibility

You can do this by either adding a codicil to your existing Will or writing a new Will. See our Changing a Will page for more information.