Choosin
g
a Guard
ian is
a very dif
fi
and emo cult
tiona
decision l
Guide to choosing
and being a Guardian
Call us free on 0800 999 7430 or visit www.goldsmithwilliams.co.uk/wills
What is a Guardian?
A Guardian is the person(s) you choose to look after and
bring up your children should anything happen to you.
What does a Guardian have to do?
Guardians will be responsible for your
children until they are 18 and will:
Provide a home and daily care
Make any decisions regarding your children’s
education, health, religion and general upbringing
Make sure important events including birthdays,
religious holidays and other family events are
remembered and properly celebrated
Be responsible for all assets or money left to
your children (if also named as Trustees)
Who can I choose?
Guardians must be over 18 and be mentally capable.
Other than that, you can choose anyone who you
think will be suitable to step into your shoes and care
for and raise your child(ren). However, choosing a
Guardian is naturally a very difficult and emotional
decision and one that should not be rushed.
We recommend you ask yourself the following
questions before making your decision:
Can they provide a stable and
comfortable home?
How is their relationship with your children?
Where do they live in relation to your children’s
school, friends and other relatives?
How old are they and do they have
any health issues?
Do they have or are planning to have
children of their own?
It is important to understand that just because you
name a Guardian in your Will, it does not mean the
decision is binding. Should someone object to your
decision, and bring a case to Court, the Court would
then decide what is best for your child. It is therefore
a good idea to discuss your decision with all the
people it could affect, directly and indirectly.
Guardian
s are
respons
ible for
your chil
dren
until the
y
are 18
Do I need to name my partner as a Guardian?
A mother automatically has parental responsibility (PR) of her child(ren).
This means should the father of her children die, she will have sole PR of
their child(ren) whatever her current relationship to the father. The position,
however, varies for fathers.
In England and Wales, if the parents were married or had adopted the child(ren)
then they have joint PR. This means if one of them dies, the surviving parent will
automatically have sole PR of their child(ren).
If the parents have divorced and one then dies, the surviving parent will still
automatically have sole PR for the child(ren), even if the children did not
previously live with the surviving parent.
If the parents were not married, and the father dies, the mother will automatically
have sole parental responsibility. If the mother dies, the father will only acquire PR
if he has been named on the birth certificate of the child after 01/12/2003 or, by a
PR agreement entered into with the mother or by a PR order made by the Court.
How many Guardians can I choose?
Many people prefer to appoint two people as Guardians (typically a couple).
You can choose up to four people though. However, the more people you
choose, the more likely there could be problems.
While whoever and how ever many people you choose as Guardians will all have
your child(ren)’s best interests at heart, it is human nature for there to be differing
opinions about how to raise your child(ren). If the Guardians are unable to agree,
this could lead to conflict and, ultimately, further distress for your child(ren).
A common example of this is appointing both sets of grandparents in order to
appease everyone and not appear to be favouring one side of the family.
If you are considering appointing yours and your partner’s parents as Guardians,
we would suggest you discuss this with them and come to a compromise.
For example, if the maternal grandparents (e.g. the child’s mother’s parents)
are chosen as Guardians, they will at the very least consult with the paternal
grandparents (e.g. the child’s father’s parents). This way all sides are
considered and valued but one Guardian has the final say.
How do I appoint Guardians?
You appoint your chosen Guardians in your Will; there is a section in your
Will solely about Guardians. Alternatively, you can set it up on a separate
legal Guardian document.
What if my chosen Guardians die?
When you make your Will and choose your
Guardian(s), you have the opportunity to name
substitute Guardians. If your primary Guardians
pass away, your substitute Guardians will then
fulfil the role.
Naming substitute Guardians is a smart way of
avoiding having to change your Will, or even make
a new one, just to update the Guardianship clause.
That said, it is advisable to review your Will every
two years or so, just to ensure everything is still
as you wish.
You should also update your Will should any
of these events happen:
Your marital status changes i.e. you get
divorced and/or remarried
You have or adopted a child(ren)
You move home
A Guardian, Executor, Trustee or Beneficiary
moves away, dies or no longer can/wants
to fulfil role
There is a substantial change to your
property value
Your children are no longer minors (under 18)
and can manage their own financial matters
You have forgotten anybody you would
now like to mention
You would like to leave a gift to charity
You can
choose
up
to four
Guardian
s
What if I change my mind?
Sometimes circumstances change – for both you and your named Guardian(s)
– and your original choice may no longer be suitable. If this happens, the simplest
way to resolve it is to make a new Will.
If you are the chosen Guardian and you no longer wish to fulfil the role, you must
tell the Testator (the person’s whose Will it is) immediately so they can choose new
Guardian(s) and make the necessary changes.
If the Testator has died and you, as Guardian, no longer wish to act as such, you
need to inform the Executors of the Will. The Executors may then have to apply to
the Court for a new Guardian to be appointed, if there was no substitute Guardian
named in the Will. This could mean the child(ren) is taken into the care of Social
Services until a new Guardian is appointed.
What happens if I don’t name a legal Guardian?
By not naming a legal Guardian in your Will, you are allowing the Courts to decide
who looks after your children and where they live, regardless of what you might have
verbally agreed with a family member or friend.
By not n
am
a Guardia ing
n in
your Wil
l, you
allow the
cour
to decid ts
e
Helpful links
www.lawandparents.co.uk/
www.brightworld.co.uk/guardianship/index.asp
www.childrenslegalcentre.com/
If you have any questions about
anything in this leaflet, please call
our Wills team on:
0800 999 7430
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