FAQ - Appointing a Guardian for your children

Looking after your child’s future in the event of your death is incredibly important and plays a key role in writing a Will, as this gives you the opportunity to make your wishes known in a clear and legal manner. However, there are some misconceptions and key questions that are commonly brought up. Here we will detail some of the most common FAQs.

1. The need for a chosen guardian for your child.

 If you have children that are under the age of 18 (or children that may need to be cared for after the age of 18 due to medical needs or a disability) you will need to choose a guardian to look after them in the event of your death. This chosen guardian will be responsible for providing a home, daily care and making decisions regarding your child’s welfare, education and health. As such, this guardian HAS to be assigned legally in registered documentation, if there is no legal guardian assigned then your child’s care will be managed by the courts, decided who will care for your child and where they will live until they are 18 or a legally appointed guardian is assigned – this means that your child may go into the care of Social Services and be moved anywhere in the Country.

A verbal agreement or even the fact that a person is related to your child, does not equal a legally binding agreement and will not be sufficient for the courts to grant guardianship.

2. The suitability of a Guardian

Not everybody can be considered as a Guardian. The law states that all guardians must be over the age of 18 and mentally capable of taking the role of a caregiver to a minor.

There are other considerations you must make when choosing a Guardian, such as whether they have the same religious, moral or fundamental beliefs as yourself, especially in relation to the education, schooling, medical and lifestyle beliefs.

Another consideration is where your chosen guardians live – do they live in the same area as yourself or would your child have to completely uproot their life, schooling and social lives to move. This is especially important if your chosen guardian lives abroad – in this instance you would have to consider whether your child could acclimate to this new country, for example if they would need to learn a new language and have a different educational system, as well as having to consider that your children may need visas to move to a different country and this could take time and money.

3. Does your partner or the other parent need to be named as Guardians?

In England and Wales, if parents are married and both named on the birth certificate, then custody will automatically be transferred to the surviving parent. If the parents are not married, and the father dies, then the mother will continue to maintain parental responsibility for the child. If the mother dies, the father will have sole parental responsibility only if he is named on the birth certificate of a child born after the 1st December 2003 or a Parent Responsibility Agreement is in place with the mother. 

If a parent is married to another person that is not named on a birth certificate or in a parental agreement, then they WILL NOT automatically be given parental responsibility for a child without a legal declaration of guardianship, even if there is no surviving biological parent. If you have any queries relating to the clarification of your position in relation to a child, please speak to a profession such as the Will and Estate consultants at Glamorgan Legacy

4. How many Guardians do I need to name for my child?

It is common for parents to appoint two people (often couples) as guardians for their child/children, but you can choose up to four people. However, the more people appointed then the more chance there is for issues and conflicts between parties, so everyone must be able to communicate effectively.

Substitute guardians are often recommended to be named in your Will, so that if your primary guardians back down from the role, or even pass away before you do, then the substitute guardians can automatically responsibility for your child and your Will would not need to be changed.  

5. What happens if I die without appointing a Guardian?

If you pass away without appointing a Guardian then the Court will take control and start the process to find a guardian (A Testamentary Guardian) for your child by initially instructing Social Services and Cafcass to ensure the immediate safety of your child and to assess potential guardians; this can mean your child being placed into foster care immediately after your passing until this is completed.

Social Services will assess how any potential guardians interact with your child, how they can support your child and how they plan to bring up your child. They will then report their findings back to the Court.

The Court will consider the recommendations about potential guardians, and must be satisfied that they can be responsible, cope with raising your child both emotionally and financially and also consider if your child is happy with the placement and it is in the best interest for the child to be placed with the guardian.

Your child’s wellbeing is foremost the main concern for any decisions that the Court will make.

6. I don’t want to continue to be named as a Guardian for a child, what can I do?

The first suggestion for this scenario is that you have an immediate conversation with the parents, clearly informing them of your wishes and asking them to make the necessary change their Will.

If the parent has already died then you will need to inform the executors of the Will and Estate, who will then inform any substitute Guardians or the Court if there are no substitute guardians listed. This could mean that the child is taken into care until a new Guardian is appointed.

Being a Guardian is a very large commitment for a person to undertake. If you do not feel that you are suitable to be a Guardian, then that is your legal right and it is best to clear about this to anybody that approaches you in respect to this.

If you have any more detailed queries or are interested in writing a Will to ensure your child has an appointed Guardian if something were to happen to you in the future, please feel free to contact one of our friendly team at Glamorgan Legacy.

FAQ – Appointing a Guardian for your children
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