The law allows you to choose someone you trust to raise your children – a guardian – if your children are still minors and they are left with no surviving parent to care for them.
If you do not appoint a guardian for your children, then the decision as to who should care for your children will instead be made by the courts.
That, in a nutshell, has to be the strongest argument in favour of appointing a guardian for your children. But, despite this, many parents do not put any guardianship arrangements in place.
Who can appoint a guardian?
A guardian cannot be appointed by just anyone. Only those with ”parental responsibility” are able to make the appointment.
”Parental responsibility” is defined in the Children Act 1989 as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to a child and his property”.
In most cases, both the mother and father of a child will have parental responsibility, although in some cases the father may not.
Although the Act refers to ”parental responsibility”, it is not the case that only a parent can make the appointment. Anyone who satisfies this role, from a grandparent to a close family friend, to someone appointed by the courts, may be eligible to appoint a guardian (although, for ease of reference, this article will refer to that person as the “parent”).
Who should be appointed?
There is next to no restriction on who can be appointed as guardian. However, just because someone can be appointed, it does not mean that they should be appointed.
Parents must give serious thought to a range of factors in deciding whom to appoint, such as the potential guardian’s:
- Family situation
- Work commitments
- Location, and, most importantly
- Relationship with the child or children in respect of whom they may be appointed as a guardian
Another significant consideration is whether more than one guardian should be appointed. It makes sense to appoint a minimum of two guardians.
Whatever number of guardians are appointed they should act together in the best interests of the child. However, the greater the number of guardians, the more scope there is for dispute between those guardians. If a dispute cannot be resolved between the guardians, an application to the courts for a decision may be required (see below).
Some parents do not tell potential guardians about their prospective appointment. However, this is not a good idea, as it will not benefit the children in any way if they are left with someone who is reluctant to take on the role.
How is a guardian appointed?
The process of appointing a guardian is relatively simple. There is no convoluted court procedure or lengthy form to complete.
It can be done by Will or during the parents life time, and a parent can revoke the appointment of a guardian at any time and make a new appointment.
Do the courts have any involvement?
If a guardian refuses to act, or if there is a disagreement between your guardians as to the care of your children, it may be necessary for an application to be made to the court. The court who will try to resolve the situation at hand, in a way that is in the child’s best interests.
When should I think about appointing a guardian for my child?
As soon as your first child arrives! As appointing a guardian is straightforward and can easily be achieved either during lifetime or on death, there is no sense in putting it off.