Where there are minor children of the family at the date of making a Will the question of Guardianship for them should be considered and provision made for who will legally be able to look after those children. If there is no surviving parent with parental responsibility upon the death of the last parent, the Guardian appointed within that person’s Will will be given parental responsibility for any child or children.
In the event that there is a surviving parent with parental responsibility then the appointment of a Guardian would only take effect upon the death of that surviving parent. Once the appointment takes effect then the Guardian will have the legal right to provide care for the child as well as being able to make important decisions in their life. Your appointed Guardian can appoint a replacement for themselves in their own Will.
What do we mean by the phrase ‘Parental Responsibility’ (PR)?
The Children Act 1989 defines PR as ‘all rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property’. In reality this means that a person with PR can make the everyday decisions that a parent can make such as dealing with issues such as medical and educational matters.
All mothers are deemed to have automatic PR for their children but this is not the case for a father of a child. In order for a father to obtain PR he either needs to have been married to the mother at the time the child was born or marry later, be named on the child’s birth certificate (for children born after December 2003), or by a PR agreement between the father and mother or imposed by the Court. Both step and second female parents do not have automatic PR and would have to acquire this in a similar way to any father who did not have PR.
The appointment of a Guardian for your child will allow you to ensure that someone you trust is involved in the important decision making milestones during their minority. However it is important to note that Guardianship is not the same as a decision as to whom the child should live with. In the event that the child were to need to live with the appointed Guardian then that Guardian would have to apply to a Court for a Child Arrangements Order or a Special Guardianship Order but the appointment by you of the Guardian in your Will would carry considerable weight with any Judge making a decision as to with whom the child or children should live.
For advice on your particular circumstances and assistance on how to appoint a Guardian within your Will, contact our Private Client team on 01548 857000 or at email@example.com