Should I appoint a Guardian for my children in my will?

Planning ahead: What happens to my child if I die before they become an adult?

This is a bit of a morbid one today, as we think about our own mortality, but it is definitely something I would urge you to consider if you haven’t already. Whilst it’s not the most commonly asked question we get, it does get asked and it is extremely important.

What is a Guardian?

There are two types of guardians – the type named in wills (known as a Testamentary Guardian), and those appointed solely for the purposes of court proceedings (known as a 16:4 guardian – usually the CAFCASS officer). For the purposes of this blog post I am referring to the type named in a will.

This type of guardian will have Parental Responsibility for a child after the parent dies. Parental Responsibility encompasses all the “rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and [their] property” – s3(1) Children Act 1989.  In other words they will have exactly the same legal status as would a natural parent. On a day-to-day basis this would mean they are legally responsible for the child’s care, welfare, education, health and general upbringing.

It is possible to appoint a guardian in your will, and if not (and if it becomes necessary) the court may have to decide who should care for the child in your absence.

Who can appoint a Guardian?

Anybody with parental responsibility. Most commonly this will be a parent with Parental Responsibility, and the appointment would be made via their will. The court can also appoint a guardian for the child (again, not to be confused with the 16:4 guardian), or anyone with a child arrangements order saying the child lives with them.

It should be noted though that appointing a guardian in your will does not mean that any surviving parent’s PR is taken away. In fact in that situation both the guardian and the non-resident parent would hold PR.

How can I appoint a Guardian?

You must expressly state in your will that you wish a named person to act as guardian for your children. The will writer (known as testator) may write such words as:-

“In the event of my death while any of my children are under the age of 18 and provided their other parent is deceased or does not have parental responsibility, I appoint [name] of [address] to be the legal guardian of my children.”

For this wording to be valid and comply with the Wills Act 1839 s9, the will must:

-              Be in writing

-              Be signed by the testator (the person making the will)

-              Be witnessed by two independent adults (who are not also beneficiaries)

When will the appointment come into effect?

• If there is nobody with Parental Responsibility surviving – immediately.

• If there is another parent with Parental Responsibility but no Child Arrangements Order – at the time of the other parent's death.

• If you have a lives with order active at the time of your death but a non-resident parent also holds Parental Responsibility – immediately.

• If you are a non-resident parent and the other parent has a lives with order – at the time of their death.

It is possible that there could be two guardians, one appointed by each parent. Alternatively, there could be one parent with Parental Responsibility and one guardian with Parental Responsibility.

What can a guardian do?

As they have parental responsibility they can do everything that a parent with parental responsibility can. I covered this in the first paragraph of this blog post, but essentially they can decide where the child lives, consent to medical treatment, choose schools and take day-to-day responsibility for the child’s upbringing.

What happens if the surviving parent is not in agreement with the guardian, or the two guardians can’t agree?

Then either of them will have to go through the child arrangements process, just the same as if it was the two birth parents who could not agree (s8 Children Act 1989). Mediation first, and then apply via a C100. Unlike grandparents and step-parents who normally need to first seek permission of the court to make an application, guardians along with birth parents can apply via C100 as of right and do not need prior permission.

What powers do the court have?

The court have the ultimate power to select a guardian of its choosing, and also to override any guardian appointments made which are deemed to be unsuitable (s6 (7c) Children Act 1989). The court is required to act in the best interest of the child at all times – the child’s welfare is paramount in all decisions made by the court involving their upbringing – including who should act as their guardian.

“The power conferred by [s5(1) Children Act 1989] may also be exercised in any family proceedings if the court considers that the order should be made even though no application has been made for it.” – Children Act 1989, Section 5 (2)

This is particularly important where upon death there is nobody remaining with parental responsibility, and no will appointing a guardian.

So the court can overturn my appointment of a Guardian?

Yes they can under section 6 of the Children Act 1989. This was confirmed in the case of Re H (Minors) (Guardianship: Parental Responsibility) [1994] 1 FLR 593, where the court emphasised that the child’s welfare is paramount, even to the point where it overrides anybody’s acquisition of Parental Responsibility where the court took the view it was not in the child’s best interest.

What if I feel that the other parent is unsuitable or unavailable, and there is no child arrangements order / lives with order in place, but they do have parental responsibility?

You can still appoint a guardian and explain your reasons for doing so to help guide the court if a dispute arises. The appointment would not be automatic or immediate, because there is another person with PR (the other parent) and you do not have a lives with order. To make it very clear – this appointment by itself does NOT override the other parent’s PR. This doesn’t prevent the court from intervening though, and appointing your chosen guardian instead.

Example: Andy and Beatrice have a child, Clara. The parents separate and Clara continues to live with dad Andy. Andy doesn’t believe that Beatrice would be suitable to have Clara live with her on the event of his death, so appoints his (newer) wife Danielle as guardian in his will. Andy dies. Legally, at the time of Andy’s death the only person with PR will be Beatrice, so the courts would assume that is where Clara would go to live. Unless and until there is an application to the court, and the court orders otherwise this would be the default legal position. Danielle has the right to apply for a Child Arrangements Order because she has been nominated as a guardian. There would be nothing stopping Beatrice from collecting Clara from school or similar.

Is there any suggested wording to use in my will for this?

Yes, though it’s obviously a lot more nuanced than the example I gave earlier.

“In the event of my death before any of my children attain the age of 18 years, I appoint [Full Name of Guardian] of [Address] to be the guardian of such child or children, in accordance with section 5 of the Children Act 1989.

I acknowledge that [Name of Other Parent], the other parent of my children, has parental responsibility. However, it is my strong and considered view that they are not actively involved in the children’s lives and are not a suitable person to assume full-time care of them.

I request that, should it be necessary, the Court gives effect to my wishes and considers my appointed guardian to be the most appropriate person to care for my children in accordance with their best interests as required by section 1 of the Children Act 1989.

I also invite the Court to consider this clause alongside any written statement of wishes I have prepared explaining my reasons in more detail.”

As before – make sure to comply with the requirements to make the will valid:-

-              Be in writing

-              Be signed by the testator (the person making the will)

-              Be witnessed by two independent adults (who are not also beneficiaries)

[Wills Act 1837, s9]

What else can I do to support an appointment where the other parent isn’t suitable, but there is no lives with order, in the court’s eyes?

Where there is a disputed case of guardianship it would be useful to write a letter of wishes to the court. This is not binding on the court (though it can be persuasive), and the court will have the final say, but it can help them to understand why you have chosen the person that you have, and why the other parent would not be suitable.

Try to include:-

·       A description of the other parent’s lack of involvement and concerns about their behaviour.

·       Reasons why your chosen guardian is better suited.

·       Provide examples of evidence where possible, for example a diary showing lack of contact, particular concerns about safety.

You will need to keep a copy of this letter with your will, and also explicitly refer to it within your will. Note that you cannot make your will and refer to a letter you will write in the future. This will not be valid. The letter must exist at the time of making the will.

What if I feel that the other parent is unsuitable or unavailable, and I have a lives with order?

This is covered in s5(7) Children Act 1989. It makes provision for the appointment of the guardian to be immediate upon the parent’s death, provided they have an active ‘lives with’ order.  This happens even if there is anybody else with Parental Responsibility. They will share PR with that other parent.

With the reality on the ground it is very likely that upon the death of the parent who has made the guardian appointment, the children would immediately be taken in by the guardian. If the other PR holder disputes this then this would require an application for a Child Arrangements Order. This is because the situation would be similar to where two parents (both with PR) can’t agree on where the children should live or what time they should spend with the other parent.

As before, the child’s welfare will remain the paramount concern, and so the court will make any such orders with that at the heart of the decision.

Example: Andy and Beatrice have a child, Clara. The parents separate and Clara continues to live with dad Andy. Andy doesn’t believe that Beatrice would be suitable to have Clara live with her on the event of his death, so appoints his (newer) wife Danielle as guardian in his will. At some point prior to death Andy and Beatrice went to court, and Andy gained a ‘lives with’ order. Andy dies. Contrasting this with our previous example, Danielle in this scenario (lives with order in place in favour of the appointing parent) would gain PR immediately. There is a legal expectation that Clara would continue to (or go to) live with Danielle.

Beatrice continues to hold PR and is entitled to make an application to the court with regard to deciding where Clara lives.

What if I appoint someone other than my spouse or someone who lives with the child as their guardian?

It would be the same as above. Except the child would move to live with the appointed guardian in the event of Andy’s death.

Example: Let’s say Andy appoints his sister Edie as Clara’s guardian. Edie’s appointment would mean PR is given to Edie at the exact time of Andy’s death. Once Andy dies Edie would take in Clara. The lives with order however would cease due to Andy’s death. It is only the appointment of the new guardian that takes place. If there is any subsequent disagreement then there would need to be an application for a Child Arrangements Order.

What happens if there is a joint lives with order?

The lives with order continues but only for the surviving parent. Guardians would take PR, but not automatically override the lives with order which still operates in favour of the surviving joint holder. This is in contrast to what has been said above.

Example. Andy and Beatrice have a shared lives with order. Andy appoints his sister Edie as guardian, and Beatrice appoints her sister Francesca. Upon Andy’s death, Edie gains parental responsibility, which is shared with Beatrice. Clara continues to live with Beatrice. Francesca does not gain PR as Beatrice did not also die.

What if I appointed my new spouse as guardian in my will but we later divorce?

The divorce cancels the appointment of the guardian. This cannot be challenged in court as it is final. However, if a fresh appointment is made after the divorce is finalised then this would be valid. This can be found under Children Act 1989 6 (3a).

Note: Step-parents do not automatically gain PR upon marrying the parent, so for them to have PR at the time of the parent’s death would be unusual (though not unheard of). The appointment would mean them potentially acquiring PR for the first time.

What happens if the child is 18 or older?

Nothing, the child can choose what to do as the child arrangements order would have expired.

What if the guardian I choose refuses to accept the appointment?

The appointment of the guardian in a will does not mean they have to accept it. If they decline and no alternative guardian is named in the will then the court will have to appoint a guardian.

However, if the person starts to care for the child then this indicates a formal acceptance of guardianship. If necessary they should apply to court for confirmation of this, and / or a Child Arrangements Order.

Quick reference guide

Summary

Planning for the guardianship of your children is crucial. By appointing a guardian in your will, you ensure that your children are cared for by someone you trust. Make sure to follow the legal requirements for a valid will and consider writing a letter of wishes to support your decision. Always seek advice if you are unsure about any aspect of this process.

Tips and checklist

·       Seek agreement of the person you wish to appoint, and make sure they understand the responsibility.

·       Name a substitute, in case the person you name does not wish to accept, or even dies before you.

·       Consider making a letter of wishes to accompany the will, especially if the circumstances may be controversial.

·       Update your will if circumstances change.

·       Ensure the will is properly executed and witnessed.

Disclaimers

Neil Andrews Mckenzie Friend and First Family Law are not a will writing service. Nothing in this blog posts constitutes legal advice for either Family Law or Wills and Estates. If at any time you are unsure of your legal position then you are urged to speak to a solicitor.

Neil Andrews Mckenzie Friend and First Family Law are an organisation providing advice for people going through family court. This does not constitute legal advice.

If you wish to book an appointment to discuss your case with us then please email info@firstfamilylaw.co.uk