How to name guardians for your children

 An excerpt from Lawpack's Last Will & Testament Kit.

Making a Will is not just about passing on property. If you have children, you can use your will to ensure that they are looked after by who you wish in the event of your death.

A guardian is someone you appoint to act in your place as a parent. Guardians are given both the responsibility of caring for, and the powers to make decisions about, your children (i.e. parental responsibility).

Guardians are usually appointed to look after children in the event of the parents' death, but it's not a requirement of them being a guardian, as their task is to make decisions about where the children live, with whom, and what school they go to, etc.

The guardian is often, but doesn't have to be, the same person as the executor and trustee of your will. Their responsibilities are different: an executor deals with, and has responsibility for, the financial arrangements, whereas a guardian makes decisions about the wellbeing of the children.

If the guardian isn't the same as the executor, they should be able to co-operate with the executor of the will.

The appointment of a guardian is only effective if both parents (or all persons with parental responsibility) are no longer alive.

If you have minor children, you should name a guardian to care for them in the event of them being left without any parents.

Minor children are under the age of 18 in England, Wales and Northern Ireland, and under the age of 16 under Scottish law.

Since a guardian takes the place of a parent, you should choose someone in your will who can offer the best care for your children, such as a close relative who is willing to accept the responsibility.

The guardian can be (but need not be) one of your executors.

Always check with your proposed guardian in advance to be certain that they are willing to act as a guardian before making your will.

There are complications in making a will which names a guardian if:

  • you were not married to the other parent when the child was born;

  • you and the other parent have already been or are (after making the will) divorced from each other; or

  • a court order already exists, or is made in the future, relating to where the child is to live or to parental responsibility for the child.

In these cases, we advise that you don't use our DIY Will, but instead use our Online Will or Bespoke Will service.

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Published on: October 25, 2010

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