WILLS

WILLS: Who should I choose as a Guardian?

What makes a good Guardian? Choosing the right Guardian in your will is imperative.

A Guardian is someone you appoint in your will to have legal ‘parental responsibility’ for your children. It only applies to:-

children that are under 18 at the point at which you die; and
where both natural/legal parents have died

So, what does a guardian do? And, what should you have in mind when choosing someone to appoint as a guardian to your children?

What does a Guardian do?

A Guardian is responsible for raising your minor children (under18).

They will take responsibility for all of things/choices you did previously, for example:-

home – providing a roof over their head!
school – deciding where they go to school
decisions – taking all of the decisions you would otherwise have taken during their upbringing
money – see below how a guardian is different to an executor/trustee

Will a Guardian appointment happen where just one parent dies?

No. A guardian appointment in a will only applies where BOTH parents have died. So, where a will has a guardian appointment in it but there is a surviving parent, the guardian appointment simply ‘falls away’ from the deceased’s will (ie it is ignored).

Who should I appoint as a Guardian?

You should appoint someone that:-

you trust
you know your children would get on with
has agreed to act should it be needed

Should I appoint more than one Guardian?

This is a practical consideration more than one of law. So, siblings of the testators (persons making the wills) are often prime candidates for guardian appointments – eg a sister of brother of father and a sister or brother of the mother. As solicitors, we are often asked if it is possible to have a sibling from both sides of a family to act. The black and white answer is yes. The more considered answer is more no. Here’s why.

Think about the day to day care of your children where you are a natural/legal parent. There are extra practical considerations to be had where a family (including the legal parents) are split over more than one household.

The more ‘normal’ scenario therefore is to have a guardians appointed who reside under the same roof.

Should I appoint a substitute Guardian?

You don’t have to appoint substitute guardian(s) but why not. This is to cover a scenario where the appointed guardians can not or will not take the appointment in the event of your death. This covers off a situation where friends or family members would then otherwise have to apply to the Courts to be appointed. So yes – a substitute is perhaps a good idea.

What age should a Guardian be?

Over 18 as a matter of law! But think about the responsibility that will fall upon them. Think also of their ages not just when you make your will, but also as your children grow (up to 18). So parents of testators are another prime candidate (ie the grandparents of the children in question/the parents of the testators). In that situation, think about the age and likely health of the grandparents both at the point at which you make your will, and also the point at which your children reach 18 (or moreover the point at which your youngest child reaches 18).

Choosing the right guardians is a big decision

Can I change the Guardian in my Will?

Like any other clause in your will you can change a guardian appointment so long as you are fit and well have the legal mental capacity to do so.

How do the Guardians get money to pay for my children’s upbringing?

Funds should ideally be made available to your guardians from your estate to ensure they are not out of pocket by brining your children up.

As a general rule the executors/trustees of your will make that money available to your guardians. There is a very strong argument to split those roles (guardians -v- executor) and you can read in more detail about that by clicking here.

Can my Executors also be Guardians?

Technically yes. But (as above) there is a strong argument that you should split these roles.

In short, your executors (also known as trustees) are responsible for looking after the money in your estate. Your guardians look after the day to day to care of your children.

Your executors are under a great deal of responsibility to ensure that the estate does two contradictory things:-

protect capital so that your children have something to inherit when they reach 18 (or whatever age your specify); BUT TO ALSO)
make income available to your guardians for the cost of living of your children

Naturally, you will choose someone good with money and admin to deal with your estate (executors/trustees). The skills set for guardians is quite different! But there is something much more significant which advocates splitting the role of executor and guardian, and that is the concept of a ‘conflict of interest’.

By asking your guardians to also manage the money (ie also act as executor) you place them in an almost impossible situation of needing to pay themselves money to cover the cost of bringing your children up, whilst also needing to protect the funds for the children when they inherit. This perhaps provides an almost impossible moral dilemma for your guardians.

Therefore, by having different people act as executors versus guardians you remove that very difficult dilemma.

Can my Guardians by legally liable for poor parenting?

Executors/Trustees are personally liable to ensure they manage all money appropriately, and beneficiaries can sue them for stuff they get wrong! However, this principal does NOT apply to the role of guardian.

The simple rule of thumb is choose your guardians carefully!

Should I ask my chosen Guardians if they are prepared to act?

Most definitely! You absolutely check with friends or family that they are happy to take the appointment. Remember, it only kicks in if both parents die, and do so before the children reach 18.

What happens to a Guardian appointment when children reach 18?

This is a relatively benign point, and one more of practical questions than of law. We don’t suddenly throw our children out of the house at 18! And, whilst technically the guardian appointment comes to an end when a child reaches adulthood (18), the practical reality is that little will change as far as home life is concerned. What does of course happen is that the ‘child’ is then free to make all of their own decisions in life without needing the input of a ‘parent’ or guardian.