A Comprehensive Guide to Testamentary Guardianship for Children

Deciding who will become guardian of their children should they 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. For example, there is a big difference between a grandparent of 62 caring for a three year old child, and a grandparent of 75 dealing with the challenges of a 16 year old.

The Different Between Guardians and Trustees

  • Guardians – Guardians are completely responsible for the child’s welfare.
  • 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 the same, due to the different roles that they both play. This also ensures that the administration of the trust fund is done purely within the child’s best interests and only for the child’s benefit.

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, is listed on the birth certificate of the child or can be granted parental responsibility by the court or enter an official parental responsibility agreement.

Assuming Parental Responsibility as a Guardian

A guardian that has been appointed by an adult with parental responsibility will then gain parental responsibility themselves only if:

  • There is no longer any surviving adult with parental responsibility; or
  • The appointer has a residence order for the child immediately before his or her death

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.

Wills for Married and Unmarried Parents

The wills of married parents usually appoint guardians for after both parents are deceased. Wills of unmarried parents are a little more complicated and a mother in her will (if in accordance with her wishes) should appoint guardianship to the child’s father and then make a substitute appointment should the child’s father pass on.

Does divorce change this?

Divorce will only affect guardianship appointments if a mother has a spouse who is not the birth parent of her children and appoints him as legal guardian should she die. If the couple then divorce, the guardianship appointment will be affected. This is suggested by the law reform succession act 1995.

Getting in touch

For more information on guardianship or wills and probate, please contact David Endicott on 01295 204005 or email dendicott@se-law.co.uk.