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- Upon your death the children could be placed in the care of the local authorities which could be immensely upsetting and disruptive for them.
- The courts will then decide who is best placed to look after the children and it may be someone that you would not have picked yourself.
Appointment of Testamentary Guardians
‘Testamentary guardian’ merely indicates that the guardian has been appointed by Will.
The appointment of guardians and the rights they have are governed by the Section 5 of the Children Act 1989. A guardian can only be appointed in accordance with that section. A parent with parental responsibility may appoint a guardian by Will.
The appointee will become the child’s guardian if, at the death of the testator:
- no parent with parental responsibility survived him/her; OR
- there was a residence order in the testator’s sole favour relating to the child
If neither of these conditions are fulfilled, the appointee will not automatically become the child’s guardian but, as he has parental responsibility, he will be entitled to apply to the court to be appointed guardian.
- It is usual (but not essential) that the same persons are appointed guardians of all the testators’ minor children.
- It is desirable that each parent should appoint the same persons to act as guardian.
- It is important that the testator should obtain the consent of the proposed guardian before making the appointment.
- The appointed guardian can appoint a successor
Where a child’s mother and father were married to each other at the time of the child’s birth, they shall each have parental responsibility for the child.
Where the child’s parents were not married to each other at the time of the child’s birth, only the mother has parental responsibility. In this situation the mother may give parental responsibility to the father by one of the following means:
- To marry the natural father at any time following the conception of the child.
- For births registered after December 2003 by naming the father on the birth certificate.
- For births registered before December 2003 and/or where the father is not named on the birth certificate, the birth will have to be re-registered.
- If the father does not have parental responsibility at the time of the death of the natural mother, he will have to apply to the court.
In some cases it may be that the mother would wish to appoint alternative guardians in the event that she pre-deceases the father – this can only be done if the father DOES NOT have parental responsibility.
PARENTAL RESPONSIBILITY
You wouldn’t leave your children for a few hours with someone you couldn’t trust.
Don’t risk dying without organising guardianship.
GUARDIANSHIP
Issues to Think About
Not leaving a simple Will in the hope that ‘everything will be alright’ could have a disastrous effect. If you do not make provision for your young children, you are leaving them in a vulnerable position.
- The guardians will have the right to decide on the child’s upbringing, health care, religion and education.
- The guardians may not be able to afford a comfortable existence for your child.