Appointing Guardians

You’re in a settled relationship – married, civil partnership or co-habiting – and you have children. Have you yet given any thought to appointing guardians for your children in the event of both of you dying while they’re under age? If not – here’s why you should. If only ONE thing persuades you that you need to get a Will written then it’s surely ensuring that someone you know, like and trust will care for your children if you and your partner should both die?

Testamentary Guardianship
The term Testamentary Guardianship is legalese for the process that appoints a person or persons to look after your children in the event of your death. The guardian that you appoint, via your Will, will most likely be a relative or a friend who has agreed with you that they’re willing to care for your child/children in such an eventuality.

Once the guardianship comes into force, that person will have all the duties and responsibilities towards the orphaned offspring that their parents would.

The process for appointing a testamentary guardian and the rights which are conferred is governed by section 5 Children Act 1989.

Who Can Appoint a Testamentary Guardian?
There are three categories of person that can appoint a guardian:

1. A parent with parental responsibility for the child
2. The child’s guardian
3. A special guardian for the child.

Note the emphasis on parental responsibility. The point of that emphasis is to stress the difference between being a parent and having actual parental responsibility. So, for instance, an unmarried father not actively involved in parenting his child can’t appoint a guardian. If he wants to do so then he must first obtain parental responsibility. If you want more information on what parental responsibility entails go here.

It’s not all about the assets
If, until this point, you’ve felt you didn’t need a Will because you lack assets to bequeath, I trust I’ve convinced you that you DO have assets. Your children. And further that you now appreciate the importance of having a Will in which you’ve appointed a guardian to care for the most precious asset of them all.

There are of course other important things to include in your Will aside from the issue of guardianship. In this blog, I detail three things you must include in your will. Appointing guardians I’ve covered here. But the other two must-haves are, in brief:

1. Appointing executors – to carry out the instructions you’ve expressed in the Will.
2. Identifying your beneficiaries – it’s crucial that your Will is clear about who you want to benefit from it.

Then the blog identifies some optional things to consider for inclusion in your Will. These include, but aren’t restricted to:

• Your funeral wishes
• Distribution of personal belongings and …
• … cash legacies.

If you’re already thinking about any or all of these things and have been talking to the parties concerned it will make the process of drafting your Will so much more straightforward.

Get in Touch
It’s clear that getting guardianship of your children right is of critical importance. Should you have questions and/or want help with doing this, or indeed any other aspect of writing your Will, then get in touch.

You can fill out my web form here. Or, if you prefer, email me on or pick up the phone. 07538 946 839 will reach me. Should I not respond then leave a message and I’ll get back to you.

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