Guardians for your Little Angels
For such an important decision there is surprisingly little guidance. Here then are some points and pointers.
What is a Guardian?
A guardian is responsible for a minor child’s day-to-day upbringing. Guardians effectively step into your shoes as parent to decide everything from where your child lives and goes to school to the medical treatment he or she receives. Put simply, guardians become your child’s carers*, mentors, drivers, teachers, and friends and one would expect the relationship to continue long beyond the child reaching legal adulthood at the age of 18.
Note that guardians are distinct from executors, the people responsible for the financial administration and management of your estate. There is no legal reason why executors cannot be guardians, but those suited to one role may not be suited to the other. And there are advantages to having different people in each role – first there will be more adults with an interest in the child’s future, and second the guardians might not want the responsibility of looking after money as well as the child.
Who can appoint a guardian?
Anybody with ‘parental responsibility’ (‘PR’).
And who has PR? A child’s mother automatically acquires PR but a father does not unless he is married to the child’s mother when the child is born. A father can acquire PR in a number of ways, including by being named as the father on the register of births (with mother’s consent). In anything but the simplest case it is important to be clear about who has PR, as different arrangements may have an impact upon whether a guardian can be appointed and when that appointment takes effect.
How can a guardian be appointed?
Contrary to popular belief, an appointment need not be in a will. The requirements are that an appointment must be:
• Made in writing;
• Dated; and
• Signed by (or at the direction of) the person making the appointment.
Conventionally, guardians are appointed by will, as a will is less likely to be lost or forgotten and more likely to be prepared with the help of a solicitor with proper legal advice and formality.
But if choice of guardians is the only matter stopping you making your will, you’d do better to appoint them in a separate document or codicil at a later date.
When does an appointment take effect?
Usually after the death of both parents (provided that both had PR). But special rules can apply, for example, where court orders relating to a child’s care are in force.
So married parents both with PR can both appoint guardians, but those appointments won’t take effect until after both parents have died. You can see it is sensible for parents to appoint the same guardian(s) if possible.
Who to appoint?
Family members are often the natural choice. Grandparents can be ideal, but not if they are already elderly and the children still very young. What would happen if either became ill or too old to cope?
Siblings with not too many children of their own.
Otherwise close friends perhaps who would love to have children of their own but haven’t been able to, or who have children of similar ages.
It is tempting to seek to cover every eventuality but there are limits to what you can achieve.
You can make conditional appointments – for example, your mother, provided she is under 70 when the appointment takes effect.
You can appoint a substitute – for example, if my mother is over 70 or unable or unwilling to act, our good friends A & B.
You cannot appoint successive guardians – a guardian who takes up the appointment is the only person who can appoint their own successor. The best a parent can do is to leave a letter expressing wishes as to who might be asked to take over.
Can guardians refuse to act?
Guardians appointed in a will do not have to act. They can disclaim their appointment within a reasonable time. Or at a later date a Court can step in and make alternative arrangements for your children’s care.
However once an appointment has taken effect, a person cannot surrender or delegate the role save on death or through the intervention of the court.
How will the guardian afford it?
A guardian is not obliged to provide financially for the children from his or her own resources. Financial support would usually come from your own assets which would be held in trust at least until the children reach 18. The trustees typically pay expenses directly or to the guardian to apply for the children’s benefit. They could if necessary even help with the cost of buying a larger house to accommodate everyone.
Succession and inheritance tax planning, along with life insurance should therefore be considered carefully.
Imagining your children getting by without you is a horrible thought, less horrible if you know who will be there to look after them in your place. So do think about it, but don’t let it hold up making your will!
And if you are asked to be a guardian think hard about whether you can take it on. Although flattering to be asked, it is a responsible and onerous task.
As we generally say with all matters relating to family it is important to talk about guardianship, not just with each other, but with those you would like to appoint and, as soon as the children are old enough, with them too. Even angels (and devils!) need someone to look over them.
* Noseblowers, laundry service, punchbag, shoulder to cry on, taxi-service, fan-club, mentors and hopefully friends. While the appointment has legal effect until the child reaches 18, of course the relationship can (and one hopes will) last much longer than that.