Ensuring your children are cared for by trusted individuals is one of the most important decisions a parent can make.
Appointing a guardian provides legal clarity and peace of mind, guaranteeing that if you were no longer able to care for them, your children would be looked after by someone you choose.
What is a Guardian?
A guardian is someone legally appointed to assume parental responsibility for your minor children (those under 18) if you, as their parent, die or become incapacitated. This role involves making decisions about their upbringing, education, health, and welfare, much like a parent would.
Why Appoint a Guardian?
Without a formal appointment, the court would decide who should look after your children. While the court’s priority is always the child’s best interests, this process can be lengthy, stressful, and may not result in the person you would have chosen being appointed. By appointing a guardian, you:
Provide certainty: You specify exactly who will care for your children.
Ensure continuity: Your children will be cared for by someone they know and who shares your values.
Avoid court delays: The process for establishing care will be smoother and quicker.
Gain peace of mind: Knowing your children’s future is secure offers invaluable comfort.
How to Appoint a Guardian
There are two primary ways to formally appoint a guardian:
Through Your Will: This is the most common and recommended method. Including the appointment in your will ensures that your wishes regarding your children’s care are legally binding and are considered alongside your other estate planning.
By Separate Deed: You can also make a standalone legal document specifically for the guardianship appointment. This deed must be in writing, signed by you, and witnessed by two people.
Formalities
Whichever method you choose, the appointment must be in writing, signed by you, and attested by two witnesses (who must be present when you sign and sign in your presence).
When Does the Appointment Take Effect?
A guardianship appointment made in a will or separate deed typically takes effect upon your death. To avoid confusion caused by multiple appointments, married couples often use language to say that their appointment is only effective if they are the second parent to die.
Who Can Be Appointed as a Guardian?
Any person aged 18 or over can be appointed as a guardian. When choosing, consider:
Suitability: Do they share your values and approach to parenting?
Willingness: Have you discussed it with them, and are they willing and able to take on this significant responsibility?
Practicality: Do they have the capacity (space, time, financial stability) to care for your children?
Relationship with your children: Do your children know and have a good relationship with them?
It is highly advisable to discuss your intentions with your chosen guardian(s) beforehand to ensure they understand and accept the role.
Important Considerations
Joint Appointments: You can appoint more than one person to act as joint guardians.
Revocation: You can revoke or change a guardianship appointment at any time, typically by making a new will or a codicil (an addition to your will) that amends the previous appointment.
Parental Responsibility: The appointed guardian will acquire parental responsibility for your children. If another parent with parental responsibility (e.g., a surviving biological parent) is still alive, the guardian will act alongside them, or the court may need to intervene to resolve disputes.
Professional Advice: Consider taking professional advice when making a guardianship appointment to ensure it is legally sound and meets your specific circumstances.