February 20, 2018Do I need a guardianship clause in my Will?

Guardian in Will

If you have children under the age of 18, you may want to consider appointing a guardian for them in your Will in case you die before they reach the age of 18. This allows you to choose someone you approve of to take care of your children, giving you peace of mind.

Guardians may only be appointed for children who are under 18, known as ‘minors’.

If you fail to appoint a guardian for your child and both you and the child’s other parent die, the Court will typically have to appoint a guardian and this may not have been the person you would have chosen yourself.

Who can appoint a guardian?

A person who has ‘parental responsibility’ for a child can appoint a guardian for the child in their Will.

‘Parental responsibility’ means all the rights and duties that you would expect a parent to have in relation to making decisions for a child. They might, for example, make decisions about the child’s education, medical treatment or where the child lives.

A child’s mother always has parental responsibility for her children.

If the parents of the child were married when the child was born, they will both automatically have parental responsibility.

If the parents were not married when the child is born, the mother automatically has parental responsibility but the father can acquire it in a number of circumstances – for example, if:

  • he marries the mother;
  • he is registered as the child’s father on a register of births in the UK (which requires the mother’s consent; this applies only if the child was born on or after 1 December 2003);
  • he enters into a Parental Responsibility Agreement with the mother which is then filed at the High Court;
  • he obtains a court order giving him parental responsibility;
  • he is named in a Child Arrangements Order as a person with whom the child is to spend time or otherwise have contact and the court decides that it would be appropriate to make a Parental Responsibility Order in his favour;
  • he becomes the child’s guardian; or
  • he adopts the child.

Provided that you have parental responsibility for the child, you can name a guardian for them in your Will (you can in fact appoint a guardian without using a Will, but most parents use their Will as they intend for the appointment to take place on their death).

When does the appointment take effect?

If you appoint a guardian for your child in your Will and you then die, the appointment will take effect only if, following your death, no other parent has parental responsibility for the child.  (It will not matter that a person other than a parent has acquired parental responsibility.)

If, following your death, the child has a surviving parent who has parental responsibility, the appointment of your chosen guardian will not take effect for as long as there is a surviving parent.

Example 1 : Married parents

Jane and Samuel were married. They had two children. Jane and Samuel divorce and the children live with Jane. Jane makes a Will appointing her sister Charlotte as guardian of the two children. Jane then dies. Because Jane and Samuel were married when the children were born, Samuel has parental responsibility for the children. The appointment of Charlotte as guardian for the two children will only take effect if Samuel dies before the children reach 18. 

Potential problems

A potential issue arises if the parents each choose different guardians. In the above example, Jane has appointed her sister Charlotte, but Charlotte will not be guardian unless the children’s father Samuel dies before the children reach 18. However, what if Samuel decided in his Will to appoint his brother Matthew as guardian, and then Samuel dies? On Samuel’s death, both Jane’s appointment of Charlotte and Samuel’s appointment of Matthew will come into effect. The two guardians must then agree on all matters relating to the children’s education and upbringing. Should they disagree, the matter will have to be referred to the Court.

To avoid difficulties it is highly advisable that parents discuss guardians with each other and try to coordinate who they appoint – even if they are no longer a couple.

Example 2: Unmarried parents

In this example, Janet and Chris are not married. They have a daughter, Melissa. Chris does not have parental responsibility for Melissa. Therefore, only Janet can appoint a guardian for Melissa. She makes a Will appointing her mother Lisa as guardian. If Janet dies while Melissa is under 18 and Chris has not acquired parental responsibility at that time, Lisa’s appointment will take effect immediately and only Lisa will be able to make decisions about Melissa – regardless of whether or not Melissa is living with her father Chris. Lisa will have no legal obligation to consult Chris when making decisions. However, if Chris has acquired parental responsibility at the time of Janet’s death, Lisa’s appointment will not take effect unless Chris dies or his parental responsibility is terminated (for example, by a Court Order) while Melissa is under 18.

It is clear that where parents with children are living together but are not married, the father needs to have parental responsibility to avoid potential issues.

How to appoint a guardian

The appointment of a guardian in your Will can be made using a fairly simple clause and a substitute guardian can also be named – for example:

If my husband dies before me, I appoint, as the guardian of any of my children who are under 18 at my death, Jane Smith of 123, The Street, Town, County NG1 234. If Jane Smith dies before me, or her appointment does not take effect for any other reason, then I appoint Lisa Jones of 456, The Street, Town, County, NG2 345 instead.

Appointments can be conditional – for example:

If my husband dies before me, I appoint, as the guardian of any of my children who are under 18 at my death, my mother Gloria Jones of 123, The Street, Town, County NG1 234 PROVIDED THAT she is under the age of 70. If my mother dies before me, or she is 70 or older, then I appoint Lisa Jones of 456, The Street, Town, County, NG2 345 instead.

Appointments can also be more complex. For example:

  • One guardian until they reach a certain age, then another should  take over.
  • A couple (e.g. your sister and her husband) provided that they are married, otherwise someone else.

Again, it is important for parents to consider these clauses together, even if they themselves are no longer a couple. Otherwise, each may appoint separate guardians who will then have to make decisions together, or go to Court. Children will already be dealing with grief, and any conflict between the two separately appointed guardians will only add to this.

Changing your mind

Having made a Will, you might later change your mind about your chosen guardian. In this case you can either:

  • Destroy the Will (and make a new one); or
  • Make a “codicil”.

A codicil is an addition to the Will that modifies or revokes (cancels) a part of it.

So the codicil might simply state that the appointment of a guardian no longer applies, or it may state that instead of appointing your sister Jane, you instead want to appoint your mother Sarah.

The effect of divorce

If, having appointed a guardian for your child in your Will, you get divorced, this will not automatically revoke (cancel) the Will (or indeed, the appointment of the guardian).

However, if you then marry again, the entire Will (including the appointment of the guardian) is automatically revoked.

Wills are always revoked on marriage unless they specifically state that they were made in ‘contemplation of marriage’ to a specific person.

Therefore, on remarriage, you should make a new Will and include the appointment of a guardian for your children of your first marriage. Once more, we would strongly recommend coordinating with your ex-spouse to avoid conflict in the future.

Financial provision

If you appoint guardians for your minor children, who will pay for their upkeep? Many parents deal with this issue by including a provision in their Will that their ‘residuary estate’ – that is, the amount of money left after all debts and expenses has been paid – should be held ‘on trust’ for the children. This means that the money is held safely for the children until they reach a certain specified age – usually 18, 21 or 25.

The trustees – those who look after the money for the minor children – usually have the power to make some of the money available for the children’s benefit before they are entitled to it. They could, for example, pay school fees for a child directly to the child’s school, or to the child’s guardian to use for the child’s benefit.

Some parents also choose to leave a gift to the guardian, provided that the guardian does actually take on the responsibility, as an expression of gratitude.

Others may allow the trustees to loan the guardian money from the trust fund, enabling them to perhaps purchase a larger house to accommodate the children whilst they are minors. The loan can be secured by a charge on the house, so the money will still be available for the children in the future.

Parents may decide to write a letter of wishes guiding the trustees on how they would like the money in the trust fund to be used (although this is not legally binding). A separate letter of wishes should be used if the parents would like to set out their views on how their child is to be raised or even their choices of substitute guardians, should the choices in their Will fail. However, again, such a letter of wishes will only be guidance and is not binding. If the letter is brought before a court, they may consider it, but they will always consider the welfare of the child or children first.

The above is a general outline of appointing a guardian in your Will and a brief overview of parental responsibility. Speak to April King’s lawyers today for advice on guardianship clauses and other aspects of your Will, specific to your circumstances. Call us on 08700 120 130 or email info@aprilking.co.uk for a free appointment. 


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