A Guide to Guardianship

The general rules and principles for guardianship come from The Guardianship of Minors Act 1971. In this guide, we outline the basic principles of guardianship as well as the process for appointing a guardian.

Why guardianship is important

A legal guardian is the person you feel would be in the best position to raise your child or children if you were not there to do so yourself. If the worst were to happen and you don’t have a named legal guardian, the courts may appoint someone.

If both parents have separate wills or are no longer in a relationship, it is important to discuss and agree on a legal guardian together.

If you fail to appoint guardians in your Will and your children are orphaned before they reach 18, the courts will appoint guardians instead, but they won’t necessarily choose the people that you would have preferred to take care of your children.

The Law surrounding guardians is always changing and has most recently changed to include The Guardianship (Missing Persons) Act 2017, which creates a new legal status of guardian of the affairs of a missing person, enabling someone to act in the best interests of a person who has been missing (generally) for 90 days or more.

What are a guardian’s responsibilities?

Guardians act as parents; they are responsible for raising and caring for a child until they become an adult. The role includes making decisions that are in the child’s best interests and managing the child’s financial assets.

The guardian’s duties should be written down in your Will or in an informal letter and should reflect your wishes regarding your child’s upbringing. It should include choices related to:

• Health
• School and Education
• Food Diet
• Hobbies
• Religious Practice
• Usually, a guardian will also be one of the trustees for the property held in trust for the child/children.

Who can you appoint as a guardian?

You can choose up to four people; however, most people choose to appoint two guardians, typically a couple.

When considering who to appoint as legal guardian for your children, you should consider the following factors:

• How do I feel about their values and parenting skills?
• Are they able to offer a stable family environment?
• What is the quality of their present relationship with my child/children?
• Are they willing and able to handle the responsibility of caring for my child/children on a long-term basis?
• Do they share a similar lifestyle to you?
• Do they have the financial resources to raise a child?

For instance, you may feel that another family with children of a similar age may be the best option. Consider the family’s own situation and decide whether they would cope.

You may also need to think about potential rifts that could arise within the family. For example, if one of your parents or siblings is a front-runner, will you be offending another parent or sibling with your choice? How could you ensure that your children still see the family members they currently have regular contact with, even if there’s a rift between the guardians and family?

If you decide to appoint two separate individuals as guardians, consider their current relationship and how that may change in the future. Problems may arise and it is best to ensure responsible parties are involved in decision-making on your child’s behalf if necessary.

How do you appoint someone as a guardian?

You can only appoint guardians for children if you currently have parental responsibility for the children.

To appoint legal guardians for your children, you must name them as your chosen guardians in your Will. Before doing this, you should approach the people you would like to appoint as guardians to find out whether they are willing and able to take on this responsibility. You may also wish to appoint alternative guardians, who will take their place if your intended guardians pass away.

It may become necessary to change appointed guardians in a Will, for example, if:

• One of your intended guardians dies.
• Your intended guardians have separated or divorced.
• Your intended guardians have left the country or had some other major life change.
• Your intended guardians are no longer able or willing to take on the responsibility.

Changing the appointed guardians can be done by updating or writing your Will to name guardians and potentially reserves who can take on the responsibility for your children if your intended guardians die before you do.

Should I make the guardians trustees as well?

Many people choose to do this, as the guardians will be taking care of your children’s finances until they are 18. If you do this, it is advisable also to appoint another trustee who is not related to the guardians, e.g., an independent professional. Doing so will help to provide objectivity and guard against conflicts of interest. It will also provide the guardians with some support in handling the financial and legal aspects of a trust. Where funds are being managed on behalf of a minor utmost caution must be exercised.

What happens when a guardian has been appointed but there is a surviving parent?

If when you pass away the other parent of your children survives, the surviving parent will normally continue to have full responsibility for the children. In England and Wales, where the parents are not married, and the father dies, the mother will maintain parental responsibility for the child. However, if the mother dies, the father will have sole parental responsibility only where he has been named on the birth certificate of a child born after 1st December 2003 or there is a Parental Responsibility Agreement in place with the mother.

There are certain situations when both parents are not deceased where a guardian may be called upon. For instance, if a surviving parent cannot perform their role because they:

• Are overseas.
• Are in the army.
• Are in prison.
• Are disabled or mentally incapacitated.
• Refuse responsibility.

The guardian can act with the surviving parent and any disputes will have to be settled by the court. However, the surviving parent is still considered the statutory guardian.

If you are asked to become a guardian through a Will in Scotland, and another parent or guardian of the child is still alive, their rights are not affected. In other words, all parents and guardians must work together and agree on what is best for the child.

Can someone living in a different country be a guardian?

It is possible for someone living abroad to be appointed as a guardian, however, this may not be a practical choice.

The guardian would have no automatic right to live in the country because they are appointed as a guardian, nor would the child automatically be able to leave the country to move abroad with the guardian. Visas would have to be applied for and arranged, and while this was being organised, the child may have to be cared for by social services via a foster family.

To move a child abroad the appropriate consent must be obtained under the Child Abduction Act 1984.

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 there.

What is the court process for appointing guardianship?

If no guardians have been appointed in a Will, the court will firstly instruct social services to assess potential guardians. Social services will then provide their findings to the court. The report will cover how able the person is to support the child and how they plan to ensure that the child is brought up in the way the child’s parent would have wished.

The court must be satisfied that the potential guardian can cope with being responsible for the child. When the child is of an age where their wishes and feelings can be taken into account, they must also be happy with the choice of guardian.

Conclusion

There are clearly many factors that should be considered by parents when choosing who to appoint as guardians under their Will and other situations that must be considered such as if there is a surviving parent or if the guardian they have appointed moves abroad.

If you have further questions or need support with regard to guardianship, our team can help.