Guardians

Guardians are the people you appoint in your will to take care of your children (minor – ie under 18) in the unlikely event of both legal parents passing before your children reach adulthood.  Your will passes on the ‘legal parental responsibility’ that we acquire when we have (naturally) or legally adopt children of our own.

A guardian appointment will only apply if BOTH legal parents die.

You should think very carefully about who you appoint as potential guardian, and you should absolutely make sure that you obtain their consent when you make a will appointing them.

Guardians will be responsible for ‘bringing up’ your children -ie their day to day care; taking them on holiday; decisions around education and so on.  Money can/should be made available to them from any inheritance your children are set to receive to ensure that the guardians are not out of pocket.  For this (and other reasons) it is a good idea to appoint different people to act as executors v guardians otherwise you create a conflict of interests (ie the guardians need for money v the executors/trustees responsibility to look after the money for your children).

Things to bear in mind when choosing your guardians might include:-

  • are the chosen guardians willing to take on your children’s care if needed?
  • are they in good health?
  • what age are they and what age would they be by the time your children reach adulthood?

Appointing a guardian is something that many parents making a will stumble on (quite understandably).  Remember, if you have any strong wishes about the care and upbringing of your children, you can deal with this in any ‘letter of wishes‘ that you leave with your will.  This is separate to your will and is not legally binding.  It provides a really useful place for you to give your guardians direction on any wishes you might have – eg on schooling.  Separately, your letter of wishes might also cover things like funeral wishes, or the distribution of personal items.  You will only needs to cover the stuff that is legally binding.  By keeping wishes separate, if your wishes change, you simply update yourself your letter of wishes – and you do not have to go to the trouble or expense of updating your will.

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Guardians FAQs

A guardian is the person will be looking after your minor children if both their parents die before they are 18. They will take over the “parental responsibility”.

They are responsible for the day-to-day care of the children and make decisions about their upbringing, education and health until they are adults.

You can leave a “Letter of Wishes” alongside your Will detailing how you would like your children to be raised. This letter is not legally binding but there shouldn’t be a reason why your guardians wouldn’t follow your wishes.

You can appoint a guardian in your Will.

Family and friends you trust is always a good option, however, you’ll need to think that the children will be moving in with them, so you may need to take into account things like: where they live (i.e. is it close enough to the children’s current residence? If too far, this may have an impact on schools, friendships, etc); how old they are (i.e. grandparents may not be appropriate if they’re too old); financial situation, lifestyle and their own family circumstances.

Usually appointing two guardians (a couple) is appropriate, but you can appoint up to four. However, the more people you choose the higher the likelihood of conflicts arising.

It is a good idea to appoint a backup guardian, so if the primary appointed have died or don’t wish to act, your substitute guardians can take their place.

To ensure that someone you trust will be looking after your children if you die before they are 18.

If you don’t, the courts will decide who looks after them and they may be taken into temporary care while a decision is made.

You can do so by amending your Will (either writing a new Will or writing a codicil).

There is no legal problem with your guardians and executors/trustees to be same people, however, your guardians will be looking after your minor children and spending the money from your estate in their upbringing (i.e. food, clothes, school fees, etc) in accordance to your wishes. Whereas your executors/trustees, have a duty to look after your estate and maximize the returns.

Sometimes the trustees have to make financial decisions for the benefit of the children that also benefits the guardian, which could potentially cause a conflict between the two roles.

The guardian cannot benefit personally from the estate and it is advisable to either separate the two roles or also appointing an independent trustee (e.g. a professional) to make sure that the guardians don’t have too much control or access over the assets.

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