Guardianship clauses in a will
In the unfortunate event that both you and your partner pass away leaving children under the age of 18, you might consider incorporating a guardianship clause into your Will. This would give you peace of mind that your children have been left in the care of someone you trust.
It is common for guardians to be appointed under the terms of a will to make provision for the care and protection of your child if the worst should happen. For married couples with mirror wills, the guardianship clause only comes into effect on the death of the second parent. There are a number of factors which will determine whether the clause will come into effect, these are mainly governed by the Children Act 1989. If a court order is in place stating with whom a child should live then the guardianship clause would not override this. If there is no court order but the child has a surviving parent with parental responsibility then the clause will not come into effect. Technically, if there was an absent father with parental responsibility only he could make decisions so in these circumstances the proposed guardian would have to apply have to apply to Court for a Child Arrangements Order.
A guardian would have the legal authority to make decisions on behalf of your child with regard to their upbringing, including decisions on with whom your child will live and where they will attend school. This is known as parental responsibility.
It is important when appointing a guardian that the appointment is made in writing, dated and signed by the person making the appointment, there is no particular set wording that must be used.
A child’s mother automatically has parental responsibility, as do both parents married to each other at the birth of the child. A father has parental responsibility if he is named on the birth certificate, subsequently marries the mother or if he has a parental responsibility agreement or court order.
Why appoint a guardian?
It gives you an opportunity to carefully consider who should have parental responsibility if you die. Grandparents, although typically loving towards their grandchildren, may be an inappropriate choice if they’re heading into old age.
Your appointed guardian isn’t bound to accept the appointment and forewarning your appointed guardian could reassure you that your appointee is willing to take parental responsibility.
When does the guardian appointment take effect?
The appointment of a guardian takes effect on the death of the person who made it only if the deceased had parental responsibility; it ends automatically when the child reaches 18 years of age.
Other important considerations
It may be sensible for at least one of the guardians appointed in a will to also be an executor and trustee of the will if you are leaving some or all of your estate to your child. It is the trustees of your will who have control over the money and assets not the guardians.
A letter of wishes (though not binding) could give guidance to your trustees on how they should use money from your estate to benefit your children. You could express a wish for monies to pay for school fees and other educational needs. Similarly, trustees could apply funds from your estate to your guardian to accommodate your children, for example, to buy a larger house or adapt their current house. Otherwise, money will be held on trust for your children upon them attaining the age of 18. You may also consider changing the age at which your children inherit to 21 or 25
What happens if I do not appoint a guardian?
If you do not appoint a guardian to look after your child and no other surviving parent with parental responsibility exists, then the court will decide who to appoint as guardian for your child.
This may very well not be someone your child knows or is close to and could lead to disputes amongst your family.