Nominating a Guardian for your child

Anyone with young children must consider who will care for their children should they die before their children become adults (which legally happens at age eighteen). By preparing a Will with a guardianship clause they are able to decide who will have the responsibility of care for their children, but it is unfortunately not always this simple.

A parent does not always have the power to nominate a guardian under a Will – it must be a parent who has parental responsibility. Trends show most modern relationships consist of couples who remain unmarried, which may cause complications, As follows;

Mothers and married fathers in England and Wales do have parental responsibility, as do unmarried fathers who are named on the birth certificate of children born after 1st December 2003. An unmarried father whose name is not on their child’s birth certificate does not have parental responsibility; neither does an unmarried father of a child born before 1st December 2003, even if their name is on the birth certificate.

If you should die without appointing a guardian the court will have to decide who will be responsible for your children’s care. This process could take months, and in the mean time they could be placed into temporary foster care and when the decision is made the court may not appoint the person or people you would have wanted to be responsible for them.

By deciding who will have the responsibility to look after your children, you also have the opportunity to communicate how you wish them to be raised after your death. Examples of this could be a wish that your child follows a particular faith or lifestyle, or attends a particular school. These directions are in no way binding, but do act as a statement of your wishes; and you would have chosen your appointed guardian(s) because you believe that they will make the correct choices for your children in accordance with your own views and beliefs.

A properly drafted Will also allows you to appoint Trustees who will be able to look after your children’s finances should you die whilst they are still young. Doing so enables the Trustees to draw on the income or capital of the legacy left to the children so that it can be used for their education and welfare. This is usually catered for by the use of a Trust Fund, as directed in the Will.

It may be desirable to include your named Guardians as the Trustees of the fund, thus allowing them freedom to follow your wishes. However if you would prefer to appoint separate Trustees, it will provide extra protection from a Guardian who (whilst best placed to offer parental guidance) may not be the most financially capable candidate for managing your children’s inheritance.

Appointing a guardian for your children is one of the most important (if not the single most important) reason to prepare your Will. As parents with young children you should have a properly drafted Will in place to ensure your children’s guardianship is not left to chance. It is important that you seek professional advice so that all the areas covered above are considered when you make your decisions.