Testamentary Guardian for Children

One of the most difficult decisions a parent makes when preparing a Will is the appointment of guardians for infant children.

  • Should it be the grandparents who adore the child?
  • If so how will ageing grandparents cope with adolescent children?

There is a big difference between a grandparent of 62 caring for a three year old, and a grandparent of 75 dealing with the challenges of a modern 16 year old.

What’s the difference between guardians and trustees?

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

Trustees and guardians need not be the same. As their functions are different, it is often advisable that at least one of the trustees is not also a guardian. This ensures objectivity in the trustees’ exercise of their discretionary powers in connection with the administration of the trust fund for the child's benefit.

Who has the right to appoint the guardians?

The Children Act 1989 changed the law relating to guardianship and introduced the concept of parental responsibility which covers all the rights and responsibilities which a parent has over a child and the child's property.

Parents married to each other at the date of the birth of the child both have parental responsibility. Only the mother automatically has parental responsibility if the parents are unmarried. The father can acquire parental responsibility if he marries the mother, or enters into a parental responsibility agreement, or is granted parental responsibility by the court.

How does a guardian assume parental responsibility?

A guardian appointed by a parent with parental responsibility acquires parental responsibility himself, provided:

  • There is no surviving parent with parental responsibility; or
  • The appointer had a residence order for the child immediately before his or her death

The appointment of guardians is effective immediately upon the death of the parent. The court however has an overriding jurisdiction if a dispute arises, and will then be looking for the arrangement that is in the best interests of the child.

What about married and unmarried parents?

Wills of married parents usually provide for the appointment of guardians following the death of both parents. Wills of unmarried parents should, if appropriate, provide for the appointment of the father as guardian on the mother's death, and for a substitute appointment on the death of both parents.

(The Children Act only allows for the appointment of a guardian to act jointly with a surviving parent in very limited circumstances.)

A word about divorce

The Law Reform (Succession) Act 1995 provides that a divorce revokes an appointment under a Will of a spouse as guardian of the child. This is relevant where a spouse with children of a previous relationship has appointed the new spouse (who does not have parental responsibility), as guardian of those children.

Getting in touch

To find out more, please contact David Endicott on 01295 204005 or email dendicott@se-law.co.uk