Your chosen guardian would be responsible for providing a home and daily care for your children, and will make decisions regarding their welfare, education and health. If you don’t assign a legal guardian, these decisions will be taken by a court and until a guardian is assigned to them, your child could be put into the care of social services. Despite what many people think, a verbal agreement between you and another family member or friend will not be sufficient to satisfy the court. You must have made a legally valid Will.
You can choose whoever you wish to be a legal guardian for your children. The law, however, stipulates that guardians must be mentally capable for the role, and must be over eighteen. Picking a suitable guardian for your child has further considerations aside from choosing someone you trust to have your child’s best interests at heart. Other factors must be considered, such as whether they possess the same fundamental beliefs as you do, what their religious or moral beliefs are and whether their opinions on education, schooling, lifestyle and diet match yours.
It is also important to consider where the guardians live, and whether appointing someone who does not live close to your children is going to mean they would need to be uprooted from their community and friends and change schools. Where your chosen guardian lives abroad, you will also need to think about potential problems such as obtaining visas; either for the guardian or your child. It is important to ensure that your wishes are communicated in advance to your guardian. You should have a discussion with them before writing your WIll, in which you can discuss the responsibility and the role.
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. To clarify your position in relation to a child, speak to one of our specialist Will writing consultants who will be more than happy to advise you on where you stand.
Most parents prefer to appoint two people (usually a couple) as guardians for their child. However, you can choose up to four people. The more people you choose, the higher the likelihood of conflicts arising with regards to differences in opinion about the child’s care.
It is a good idea to name substitute guardians on your Will, so that if your primary guardians die before you do, or for some reason do not feel able to take on the role when the time comes, your substitute guardians can take their place. Naming substitute guardians also saves you having to change your Will if your primary guardian dies, or can no longer take on the responsibility.
Under these circumstances, the court will start the process to find a guardian for children of deceased parents by instructing social services to assess potential guardians. Social services will then present their findings to the court. The potential guardians will be assessed to see how they interact with the children, and the report will cover how able the person is to support the children as well as how they plan to ensure that the children are brought up in a way their parents would have wished.
The court will make their decision based on what is in the best interests of the child. That means the judge must be satisfied that the potential guardian can cope with being responsible for the children and the children must also be happy with the choice of guardian. However, even with this intention, the decision they take may not be the one you would have wanted. It is always far better, more straightforward and less distressing for children to have a legal guardian chosen by their parents rather than the courts.
