At Timbrell Law, we believe in planning ahead to secure the best possible outcome for our clients and their families. Where there are children, it is essential that parents think about what they would want to happen if they should both die.
Children thrive on stability and continuity. By appointing legal guardians early and working with them to create a plan, you can continue to protect your children.
What is a legal guardian?
A legal guardian is a person, other than a parent, who has the legal authority to care for a child under the age of 18. Once their appointment takes effect, a guardian will automatically have parental responsibility for that child. Parental responsibility is a legal term which covers all the rights, duties, responsibilities and authority that a parent has in relation to their child.
A legal guardian will stand in the shoes of a parent. For example, they will be able to make decisions about the child’s education, where they live and what medical treatment they receive.
Why should I appoint a legal guardian?
Taking control of the appointment during your lifetime means that you get to choose who will raise your children. You can take the time to carefully consider each potential guardian’s attributes and values making sure that they have a good relationship with your children. It also provides you with the opportunity to discuss your wishes and preferences for your children’s future and put together a plan.
If you don’t name any guardians for your children, the court will decide who will take responsibility after your death. A decision will be made one way or another, but this way you exert some control.
How to appoint a legal guardian?
The easiest way to appoint a legal guardian is through your Will. The appointment will be binding and your Will is less likely to be mislaid than a separate written document.
It will also be the first place your family look for instructions on your death.
Who can act as a legal guardian?
You can choose anyone over the age of 18 to act as a legal guardian for your children. The appointment can be an individual appointment or a joint appointment of a couple. There is also the possibility to make substitute appointments in your Will.
Does anyone automatically become legal guardian if both parents die?
No. This is a common misconception, especially with godparents.
Being named as a godparent is often a great privilege and comes with the expectation that the individual will play a key role in the child’s life. Unfortunately, it is important to remember that the role has no legal standing on your death. Those named as godparents will not automatically step into the role of legal guardian if both parents die. The same is true for grandparents, aunts and uncles.
If you want to authorise godparents to act as legal guardians, then you need to take steps to appoint them in your Will.
How to choose a legal guardian?
Your criteria for selecting a guardian will be unique to you and your children. You should start by writing down everything you are looking for in a legal guardian and work from there.
You will be able to prioritise the factors that are important to you and review periodically.
To help you get started, the following are common considerations for parents when appointing legal guardians:
- what is the guardian’s existing family structure, e.g. Do they already have children? Are they in a relationship;
- does their parenting style matches or compliments yours;
- will they have the time and energy to act;
- are they close to the rest of your family, geographically and personally;
- if they do not live in the same area as you, are you comfortable with your children being relocated if necessary;
- will their age be a problem, e.g. if you are thinking about appointing grandparents;
- are they willing to take on the responsibility;
- are they happy to commit to fulfilling your wishes regarding education, religion and lifestyle; and
- how will acting as guardian affect them financially?
We recommend talking to the potential guardians to help resolve any doubts you have and to discuss your ongoing wishes.
We also recommend that you set out your wishes in writing; a solicitor can work with you to highlight the issues that might be important and help you to put mechanisms in place to support the guardians.
Planning today will protect your children’s future.
Getting the right support to prepare your legal guardian appointments
If you would like to discuss preparing a Will appointing a legal guardian, the circumstances in which they will act and the responsibility they will take on as a legal guardian, please click here for our contact details. We would be happy to help.
Alternatively, please visit our Will page.
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