If you have children, it is a key part of the process of preparing your will to consider appointing Guardians. 

Should you die intestate, or if you do not appoint Guardians in your Will, the risk is that your children could be placed in Care until official Guardians are appointed to look after them by the Court. This is a lengthy process, which is likely to cause distress for your children and other family members. 

As such, we recommend that you appoint Guardians for your children, in the event of your untimely death. Furthermore, it is strongly advised that your appointed Guardians also make a Will themselves, in order to to safeguard your children.

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Guardians take on the role of parent to your children after your passing. Please be aware of the following:

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• Failing to name Guardians in your Will means that the care of your children will be determined by the Courts.
• We recommend that you make financial provision for your children to enable their Guardians to raise them.
• When choosing the appointed Guardians, be mindful of their ages, and it is prudent to take the precautionary measure of having another Guardian in place.

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If you have children, then choosing Guardians is an essential part of the Will process.

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Guardians - Frequently Asked Questions

You will need to carefully consider your choice of Guardians if your children are under the age of 18 years (or under 16 for Scotland). This is more complicated by law when the parents are unmarried or divorced, and it is important for you to be fully au fait with your responsibilities when you make your Will, on the subject of Guardianship.

Assuming that both living parents have the authority to appoint a Guardian/s on their death, it is usual for such appointments to take effect on the death of the second parent.

Typically, family members are selected, particularly when the children are very young. This may change as the children mature, and it may prove more appropriate to appoint different Guardians, who aren’t necessarily part of the family, at this stage. 

It is usual (but not essential) that the same persons are appointed Guardians of all the Testator's minor children. When the Guardians act only after the surviving parent's death, each parent should select the same persons to act as Guardian. 

Although each parent can appoint different Guardians, it is worth remembering that both will legally act in the event of your death.

You can also appoint different Guardians for different children, but this may mean splitting them up. Guardians have to ensure that adequate contact between the children is maintained.

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Unmarried fathers without official parental responsibility are not permitted to name Guardians. Neither will they automatically become a Guardian should the mother die. If an unmarried father wishes to assume legal Guardianship on the death of the mother, they must enter into a written agreement to share immediate responsibility with the mother, or alternatively apply to the Court. 

It would be possible for unmarried Fathers to become Guardians if appointed by the Mothers or by marriage. The recognised route for unmarried fathers to become Guardians is either by marriage to the biological mother, or for the mother to appoint them. 

We recommend against the appointment of a number of Guardians for your children. We advise you limit the maximum number of Guardians to two, and it is preferable that they share a home. Thus your children will become part of a familiar and stable environment at probably the most challenging time of their lives. By all means, appoint substitute Guardians, as this will ensure continuity if circumstances change.

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A Guardian is appointed to act ‘in loco parentis’. They are responsible, in the event of the parents’ passing, for a child or children’s day-to-day upbringing, health and welfare. All associated financial commitments are covered within the terms of the Will.

What are the responsibilities of a Guardian?

It is usual for financial management to be separated from the day-to-day upbringing of children, whilst the Guardians have daily responsibility. The control of the children's finances should be handled by someone different, usually the Trustees of your estate.

Raising children and financial control demand are separate skills. It also means that the Trustees, the Guardians and, when they are old enough, your children, can share what can be difficult decisions.

Financial considerations

Guardians are not beneficiaries. Your children, whatever their age at the time of your passing, are usually the beneficiaries of your will. The Trustees of your Will control the moneys held for your children until they reach an agreed age. 

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What is the role of a Guardian? 

At HB Partners, our consultant can advise you on all aspects of Will planning and the process of appointing Guardians.