WillsGuardianships – are they really worth it?

18th July 2019Manisha Chauhan0
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Most of us have probably come across the term “guardian” or “guardianship,” but have you ever stopped to think about whether this is something you need to put in place?

As a parent, it may be something you think you may never have to consider but the safest option is to make provisions for your children now so you know when you are no longer in this life, they will still be loved and well cared for by someone you trust.

A guardian is someone who has the legal authority to take care of a child (under the age of 18) in the event of the death of their parents or carer.

We understand that determining who will be the guardian of your children is one of the most important decisions as a parent that you will have to make and can be quite an overwhelming task so we have put together some guidance for you below when determining who your guardian(s) should be.

What is the Role of a Guardian?

A guardian will effectively have overall responsibility for the child including:-

  • choosing and providing for the child’s education
  • consenting to any medical treatment for the child
  • providing support for the child – emotional as well as financial
  • provide shelter and care for the child
  • general maintenance i.e. clothes and food

As the role of a guardian carries an immense amount of responsibility. It is therefore a good idea to talk it through with your chosen guardian(s) and let them know your wishes before you add them in your will.

Things to Consider when Appointing a Guardian

Choosing a guardian can be, in some cases, a fairly difficult decision to make. Here are some factors for you to consider ensuring you make the best choice: –

  • Location – do they live nearby? If not, your child will be moved away from their school and friends which is all familiar territory to them and their “safe place.”
  • Lifestyle – if the children have been born and raised in the UK, they will be used to a lifestyle. Does your guardian share a similar lifestyle?
  • Other children – does your guardian have other children and will they able to raise another child?
  • Stability – it is important that your children become part of a stable family environment, both financially and emotionally.
  • Personality – does your guardian have certain personality traits i.e. patient, caring and trustworthy?
  • Familiarity – does your child know and like the guardian?
  • Values – are there any cultural or religious values you’d like your children to be raised with? Does your guardian share the same values?
  • Capacity – does your guardian have the mental and physical ability to raise the children? i.e. if children are minor

Can I appoint more than one guardian?

Yes, you can appoint more than one guardian but make sure the people you choose will be able to agree on what is best for your children.

If you decide you want the guardians to act jointly (instead of jointly and severally), this effectively means all guardians would be required to agree on every single point relating to the children’s upbringing, which school they go to etc. This is likely to cause issues and potential conflict between the guardians.

In some cases, where only one guardian has been appointed, it would be advisable to appoint an alternative guardian in the event the appointed guardian(s) are unable to fulfil their role for any reason.

Guardians Appointed in Different Countries

We have recently seen a high number of queries relating to appointing guardians in different countries to each other and that of the children. Looking at this objectively, realistically this is likely to cause a lot of unrest for the children. Where would the children be expected to reside? Will an agreement even be reached as to who the children will stay with?

Aside from the above, there could also be difficulties faced (along with the associated expense) of obtaining visas for the children and removing them from the UK to live abroad. Will this even be permitted and what if the visas are refused?

Can I Leave Money for my Appointed Guardian(s) in my Will?

The simple answer is yes.

One option is to include this as a money gift in the will which will enable you to specify that the gift is conditional on them acting as a guardian. However, there is no guarantee that the guardians will use it towards the children’s maintenance.

The other alternative is that if assets are being left to the children, the trustees can use the trust income and capital towards the children’s maintenance and benefit. The trustees could do this either by using trust assets directly for the children’s benefit, by transferring income or capital to the child’s parent or guardian whilst they are a minor or to the child directly once they are no longer a minor.

Consequences of not Appointing a Guardian

So what will happen to your children if you don’t appoint a guardian in your will?

Quite simply, the Courts may appoint a guardian for your children. There may well be a feud between the family as to who looks after your children or worse still, your children may be placed into care.

I’m sure many people will agree that their children are their most treasured possession. Losing parents can be extremely distressing for children so make provisions in your will now which will make the transition less painful for your children later in life but equally give you the assurance that your children will be well looked after and loved by someone you trust after should anything happen in the future.

Manisha Chauhan

Manisha joined the Technical Advice Team in July 2019 having previously worked as an Employment Solicitor in Warwickshire before relocating to Lincolnshire. Manisha provides advice on technical queries daily and works alongside Siobhan Smith also providing ongoing support on Sure Will Writer.

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