Published on: 22nd January 2024

Testamentary Guardianship

What is a guardian?

A guardian has parental responsibility, meaning they have all the legal responsibilities of a parent when looking after the interests of a child. They are appointed in, for example, a Will but in the absence of an appointment the Court will decide.

Why should a parent appoint a guardian?

For parents with children under the age of 18, it is important to consider including a guardianship clause when creating their Wills. This is because they can appoint someone they trust to look after and care for their children, in the terrible event that they pass away unexpectedly. If they do not appoint someone, then the appointment of the guardians will be in the hands of the Court. This means that the people they wanted their children to be looked after by, may not be appointed.

Appointing a guardian in a Will also allows the testator to include wishes on how they would want their children to be raised and cared for – meaning they are almost having a say from beyond the grave. Examples of this include continuing music lessons or staying at their current school.

Can you change your mind once you have appointed a guardian in your Will?

The appointment may be revoked by the testator by revoking the Will; by creating a new Will you can either remove or change the guardian.

What to consider when appointing a guardian?

• Their location. Appointing guardians who live abroad may not be practical. This is because the guardian would have no automatic right to live in the country where the child lives even though they are appointed as a guardian. Nor would the child automatically be able to leave the country to move abroad to live with the guardian. Visas may have to be obtained and, in the meantime, the child would be placed in foster care. There is also the possibility that the courts may feel that removing the child from the UK would not be in their best interests and they would seek to appoint a different guardian in the UK, especially if the child has surviving relatives in the UK.
  
  
• Are they physically capable of caring for the children? An elderly relative may not be an appropriate guardian for very young children.
  
  
• Are they financially stable? Although the child may have funds in trust will the guardian be able to stand, for example, the loss of overtime pay or salary caused by time needed to look after the child?
  
  
• What is their relationship with the child like and are they already close?
  
  

The Will must clearly identify who the guardian is. A good example of this is shown in ‘A Series of Unfortunate Events’. The children’s parents die at the start of the series in a fire. The Will stated the children should be left in the care of their ‘closest living relative’ – the executor took this to mean the ‘closest’ in proximately and not ‘closest’ in the family tree. This meant that the children went to a guardian their parents did not want them to go to. Therefore, it is vital that the guardian is clearly named and identifiable in a Will, to avoid any ambiguity.

It used to be common practice to appoint a couple to act as joint guardians but with the current high rate of divorce it might be better to appoint a single guardian with a reserve.

Appointing a guardian is extremely important but a number of delicate decisions need to be made which is why it is sensible to get professional guidance.

If you would like to speak with one of our Consultants to discuss any of the issues raised in this article or any other Estate Planning topic please telephone 01732 868190 or click here.

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