Children under 18? Why you should appoint Guardians in your Will

If you have children under the age of 18, and you either: do not have a Will or your Will does not appoint Guardians for your children, this is something you should definitely consider.

What is a Guardian?

A Guardian is someone you appoint in your Will to have parental responsibility for your children in the event that you die whilst they are under the age of 18. The appointed guardian would have the same rights as you when it comes to making decisions regarding your children’s health, welfare, and education.

Who should I appoint as a Guardian?

Anyone can be appointed as a guardian so long as they are over 18 and have mental capacity. Usually, family members or close friends are appointed as guardians, however, it is more important that you select a person whom you trust implicitly to act and make decisions in your children’s best interests.

You can appoint just one guardian, or you may wish to appoint more than one to account for the possibility that one of the appointed guardians may be unable or unwilling to act. Likewise, you can appoint different guardians for different children if you feel that is most appropriate.

What happens if I do not appoint a guardian?

If you do not appoint any guardians within your Will and no other person with parental responsibility exists, then it will be at the Court’s discretion who to appoint as guardian for your child.

The concern is that the Court may not select who you would have chosen as your children’s guardian.

What about divorced or separated parents?

In the first instance, if a parent dies leaving behind a child or children under the age of 18, the Court will check to see if any other person exists who already has parental responsibility. Usually, any surviving parent will have parental responsibility and therefore take custody of the child.

It is important to note that mothers automatically have parental responsibility for their children, however, this is not always the case for fathers. For children born after the 1st December 2003, a father will have parental responsibility if he was married to the mother at the date of birth or so long as he is registered on the birth certificate. Of course, there are other methods in which a person can obtain parental responsibility so please do speak with our specialist Family Team if you are uncertain.

If the deceased parent has made a Will appointing a guardian, that appointment would not take effect until both parents have died, regardless of separation. Understandably, this can be a worry for parents, particularly for those in circumstances whereby the surviving parent may have had minimal or no involvement with their children otherwise.

In such circumstances, we would strongly recommend that the parent leaves a Letter of Wishes alongside their Will explaining why they would rather their children remain under the care of the appointed guardian instead of the surviving parent. Further, it should be noted that any guardians appointed under the Will will have eligibility to apply to the Court for a Child Arrangement Order (an order which determines where a child should live) after your death.

Get in touch

If you have children under the age of 18 and you either: do not have a Will or your Will does not appoint Guardians for your children, please do not hesitate to get in contact with the Wills, Trusts, and Probate Team here at Leathes Prior either via info@leathesprior.co.uk or by calling 01603 610911.