If you are not there - choosing and appointing guardians

By Shelley Faulkner and Anne Thistlethwaitespecialist Probate and Family Lawyers with AMD Solicitors.

The thought of not being there for your children is unimaginably awful. Statistically, you are almost certain to see your children and your children’s children grow to maturity. In the extremely unlikely event that you and your spouse or partner were to die prematurely, however, your choice of guardians will be taken into account in determining who would look after your children. Assuming that you are well placed to consider who could best provide for their needs in these circumstances, choosing and appointing guardians could potentially be of great significance for their future.

Who to choose

How and who to choose depends upon a large number of factors. The age of your children and their individual characters and needs will be important. Are they close to their siblings, or very different in age and temperament? Are they settled at school or in their favourite clubs and activities? Do older children in particular have strong and vital friendships? Or is the priority to avoid interrupting education at a crucial stage?

Where do your relatives live? What age are the grandparents and do you have siblings with children of their own? Do you have particular views as to how you wish your children to be educated, or in which religion you wish them to be raised? There may be only one obvious choice for a guardian, or there may be a number of sensible options.

Guardians can be appointed by a parent in a will, or in a written document. More than one guardian can be appointed and a replacement guardian can be chosen in the event that the first cannot act. If each parent appoints a different guardian, the two appointments will take effect together. No appointment will take effect, however, while a parent with ‘parental responsibility’ for the child survives.

‘Parental responsibility’ is a legal term which means all the rights, duties and responsibilities of a parent in relation to a child. A mother automatically has parental responsibility. A father has parental responsibility if he marries the mother, or if he is named on the birth certificate. He can also be awarded parental responsibility by a court, or a parental responsibility agreement can be drawn up with the mother. 

A guardian who is named in a will (or other document) acquires parental responsibility on the giver’s death, if no other parent with parental responsibility survives. The appointed guardian is not under an obligation to care for the child, however.  Should they be unwilling or unable to do so, or if someone else insists that they should care for the child, the court can resolve the dispute.

Issues in dispute

An application can be made to the court for a District Judge to decide who is to care for a child, or to resolve any other issue relating to their welfare. Where they should live or to which school they should go, can be determined by a judge if necessary, for example. 

All relevant factors are taken into account in determining the issue, including the child’s age, character and needs, and the persons and resources available to provide for them.  The determining factor is of course what is best for the child, and most family judges have a great deal of common sense. 

Choosing and appointing a guardian is one of the rights and responsibilities of parenthood, and may be one step you can take to care for your child even in the unimaginable situation that you are no longer able to do so.

For further advice and assistance contact Shelley or Anne on Bristol 0117 9621205 or email shelleyfaulkner@amdsolicitors.com or annethistlethwaite@amdsolicitors.com. AMD have offices in Clifton, Henleaze and Shirehampton.

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