Testamentary Guardianship for Children

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Deciding who will become guardian of your children should you die is one of the hardest decisions a parent has to make when creating a will.

It is a common first choice for many parents to appoint grandparents as guardians, but there can be doubts as to how the grandparents will cope as they age, and the children are reaching their adolescent years.

What is a ​Testamentary ​Guardian?

A testamentary guardian is named in yout will as the person who will take your child into your home and care for them should you die while the child is under 18.

The Difference Between Guardians and Trustees

  • Guardians – Guardians are completely responsible for the child’s welfare.
  • Trustees – Trustees are responsible for administering money held in trust for the child’s maintenance and education.

Does this need to be the same person?

Trustees and guardians do not need to be the same and in fact, it is often better if they are not, due to the different roles that they each play.

Who can appoint a child’s guardian?

The law now highlights the concept of parental responsibility rather than guardianship. It states that if a mother and father are married at the time a child is born, they will have equal parental responsibility of the child. If they are unmarried at the time of birth, only the mother will have automatic parental responsibility. A father can acquire parental responsibility if he marries the child’s mother or can be granted parental responsibility by the court or enter an official parental responsibility agreement.

Assuming Parental Responsibility as a Guardian

Guardians will assume parental responsibility immediately upon the death of a parent unless there is a dispute that arises which will then allow the court an overriding jurisdiction. The court will then look for an arrangement which works within the best interests of the child.

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