What’s a Guardian and do I need one?

Why do I need to appoint a guardian?

It is not a topic that anyone likes to think about, but parents who are preparing or amending a Will need to give thought as to who would take care of their children if the worst should happen and both parents died before the children reached 18.  You could choose to leave this to the family to arrange, but then you have no control over the choice that is made.  For your own peace of mind, you are therefore better to make this choice yourself, and include it in your Will.

This is a difficult decision, but we can help with some of the essential points you need to consider.

Who do I choose?  How do I decide?

In terms of who to choose, this is a very personal decision and must come down to who you think will act in the best interests of your children, who you believe would raise them, protect them and manage their interests as you wish.  This may come down to a point of faith, financial means or simple character of the people you choose.  The guardian you appoint does not have to be a family member – although this is perhaps the most common choice, it will not be right for everyone.  You can choose any person, or people, who are over the age of 18 to be the guardians of your children until they themselves reach 18.

You may wish to appoint only one guardian or you may choose more than one. If you choose to appoint more than one guardian and the people appointed do not live together, you will need to specify where you wish the children to live.

The person you choose will assume parental responsibility for the children on your deaths – this means that they will be legally responsible and make decisions regarding education, health and finance for the children. You should speak to your chosen guardian and ensure they are happy to take on this responsibility.

How do I ensure that my wishes are followed?

If you appoint a guardian in your Will, then provided they are willing to take on the responsibility, your executors and relatives will have to abide by your wishes and allow the person you appoint to take the children into their care.  If anyone wishes to challenge the guardian appointed, then they will have to do this through the Courts.

What happens if I do not appoint a guardian?

If you do not appoint a guardian in your Will, then there are several things that could happen.  A step-parent may take the child into their care if they took parental responsibility for the children while married to one parent. In some circumstances the Court could appoint a guardian or they could make an Order stating that your child should be placed into foster care or for adoption.

Either way, whatever happens may not be in line with your wishes and may cause arguments if no one knows what you would have wanted.