Appointing a guardian in your Will

When making a Will, one of the most important considerations for parents of young children is deciding who should care for their young ones should they die before their children are 18-years-old.

A guardianship clause ensures that people you trust, and who you have chosen, can make important decisions for your children without any legal obstacles or disputes arising.

Where you have children under the age of 18, you can add a provision in the terms of your Will that stipulates who would take care of your children should you pass away before they have reached adulthood.

This provision only takes effect where there is no other individual with parental responsibility for your children. Only people with parental responsibility can appoint guardians for their children in a Will.

A father listed on the birth certificate will have parental responsibility. If he is not listed on the birth certificate, he is able to make an application to the court for parental responsibility as the biological father.

This means if a mother appoints a guardian in her Will who is not the father, but the father is listed on the birth certificate, the provisions in the Will would not take effect.

A guardian appointed in a Will does not have an automatic responsibility when the Will is signed, they will only take on this role after you have passed away. 

Who can you choose as a guardian: 

Any person over the age of 18 can be appointed to be a guardian for your child. 

In practice people tend to appoint two people to become guardians, and these are usually family or close friends. Substitute guardians may also be appointed should the initial guardians be unable to act.

When thinking about who should be a guardian for your children, you should liaise with the people you want to appoint to ensure they are happy to take on this responsibility. You must also consider: 

• The relationship they have with your child
• Are there any reasons they should not act, e.g. advanced age or medical conditions?
• Will they raise your child in a similar way that you would?
• Where your child will live
• Are they financially stable and responsible

It is also a good idea to write a letter to accompany your Will to provide further guidance on your child’s upbringing. This letter is not legally binding, however, it can provides valuable assistance. Further, the letter can be updated while you still have capacity should your circumstances change.

How can we help 

If you are in a position where you believe it is more appropriate for the guardians you wish to appoint in your Will to have responsibility for your children instead of the surviving parent with parental responsibility, or if you have prepared a will previously and would like to discuss the change of the guardians, you should seek legal advice as soon as possible. 

Contact our team by telephone on 0116 247 2000, complete our contact form, or send us an email via info@smithpartnership.co.uk. 

We also have offices across the midlands with expert private client solicitors, in Burton, Derby, Stoke-On-Trent and Swadlincote.