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Can I Appoint a Guardian for My Child in My Will?

Posted on 26th October 2023 in Probate & Wills, Later Life Planning

Posted by

Sophie-Dominique Waddie

Paralegal
Can I Appoint a Guardian for My Child in My Will?

Short answer: yes! This article will consider what role a guardian would play, who and how to appoint them and what might happen if you don’t appoint a guardian.

If you have a child or children under the age of 18, you may have thought about appointing a guardian. But what exactly would this entail, both for you and for them? A guardian can be there to provide peace of mind to you, and to care for your child or children after you have passed away. It is one of the most important things you can to do protect your children, in case you are no longer there to take care of them.

What is a guardian and what responsibilities would they have?

A guardian is someone to whom you are giving the legal authority to look after your child, if you and anyone else with parental responsibility have died. Taking on parental responsibility gives the guardian the same role as a parent – for example, they are in charge of choosing a school, making medical decisions and financially supporting the child.

What if I am a single parent?

Something clients have asked about is what to do if they are no longer with the other parent. For example, will the guardianship take affect if the other parent is still living? The easy answer to that is, no. If you have added a guardian clause to your Will and then pass away, but the other parent or someone else with parental responsibility is still living, they will automatically continue with their roles. It is only if everyone with parental responsibility has died that a guardian’s role becomes legally active. Where parents have separated, they often, if possible, try to choose guardians together. If there is a disagreement over who is the rightful guardian, it is possible for the person appointed as guardian to make an application to the court to determine the issue.

Who can I appoint as a guardian?

A guardian can be anyone you choose, as long as they are over the age of 18 themselves. The most important thing is that you trust your chosen guardian. Many people choose family members to be the guardians of their children, but there is no rule which says you must. Close friends are often another good choice. It is important to consider things like where they live, would you child have to move schools for example.

Family members such as grandparents or aunts and uncles are not automatically legal guardians. Grandparents can be a great choice for guardians, but you need to appoint them in your Will if this is what you want.

Remember that lots of people appoint more than one legal guardian for their children. This ensures that, if someone is not able to act, for whatever reason, there is still someone to take on the responsibility and look after your children.

What happens if I don’t appoint a guardian?

Our clients often ask what would happen if they didn’t appoint a guardian and wonder if it is something they actually need to do. It is definitely something we would recommend. If a guardian is not appointed and you do pass away leaving a child or children under 18, then the court will ultimately have to decide who will care for the children. This can be a lengthy process and it may lead to your child spending time in foster care before an official decision is made. It can also mean that your child or children won’t be living with the person or people you would have chosen. Appointing a guardian gives you more peace of mind concerning your child’s future, knowing who will take care of them if you aren’t able to do so. 

Does making someone a guardian force them to take on the role?

Appointing someone as a legal guardian in your Will does not mean they have to take on the role. They do have the option of refusing to become the legal guardian of your children if they do not feel able. This is why we always recommend you talk to the potential guardians first and see how they feel. This is also why it can be wise to appoint multiple guardians, in case someone does not feel capable of taking on the role at the time of your death.

How do I appoint a guardian?

You can appoint a guardian in your Will by adding an extra clause. This clause will say that if you, and your partner if relevant, die leaving a child or children (meaning someone under 18), then you pass legal guardianship on to a particular person or people. You can also leave people specific gifts if they become the guardians of your children.

What can I do now?

This is where we can help. If you have young children and want to make sure they will be taken care of after your death, get in touch with one of our friendly team. We know this can be an uncomfortable thing to talk about, but we can help you through the process. 

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