Simple preparations to ensure your children are looked after should the worst happen.

There is one aspect to making a Will that many people neglect, despite it arguably being more important than any other part of their legacy.

Who will look after the children if we both die?

It is something that none of us like to think about, the thought our children being orphaned is upsetting so we tend to push it to the back of our minds. Yet accidents and illness happen, so it is worth recognising this and putting in a provision that helps parents plan for the worst.

This provision is to name a Legal Guardian; a person who will take on parental responsibility should both parents pass away.

If both parents die and have not identified who would be their children's Legal Guardian, the appointment would be made by the Court who may not necessarily select the person whom the parent would have chosen.

Appointing a Legal Guardian in your Will

Using a Will to name a Legal Guardian is simple. A guardian must be over 18, but other than this the decision is entirely in the parent's hands.

A Legal Guardian cannot be appointed by a parent who is alive, as it is not possible to transfer parental responsibility to another person, so it is for this reason that Legal Guardians are usually appointed in a parent's Will.

From a practical and emotional point of view it is important to choose someone who is capable of caring for the child or children and who has a good relationship with them. It should also go without saying that parents must discuss the possibility with the potential guardian prior to naming them otherwise they could refuse.

In circumstances where the Court is involved, they will usually only appoint a guardian where both parents have died without appointing one, or if both parents have appointed different people. In this circumstance the Court may simply appoint both elected persons to act as Legal Guardians with equal responsibility.

Responsibilities of a Legal Guardian

The appointed guardian will acquire parental responsibility for the child. They have a duty to care for the child, feed, clothe them and meet their needs.

Clearly becoming a Legal Guardian is a serious obligation, so we also encourage parents to consider how the guardian will be able to manage the role and can help put helpful structures in place through bequests and Trusts.

Refusing Guardianship

Guardianship is a significant undertaking and in some circumstances a guardian may not feel able to perform the role. In this case, that guardian can appoint an alternative guardian.

Once this takes place, the original guardian's appointment is terminated and replaced by the newly appointed guardian.

Other ways of revoking guardianship include if the parent who made the appointment subsequently makes another, or signs a document specifically revoking the appointment without naming another person.

Understandably, if a Will or other document appointing a guardian is revoked or destroyed, that appointment is treated as never having been made.

It is worth noting that if a remarried spouse is appointed as a guardian - i.e. the children's step-parent - that appointment is automatically revoked if the parent and step-parent later divorce.

Parental rights and guardianship

Guardianship effectively transfers parental rights from the parent to the guardian. If any parents or persons with parental responsibility are still alive guardianship does not take effect. In this way parental rights override guardian rights.

Tensions can arise where one parent has died and has elected a guardian, but the other parent is still alive. The elected guardian at this stage does not have any 'rights' and the living parent retains responsibility for caring for the child.

How long does it take to become a Legal Guardian?

Where a guardian is appointed by Will the guardianship comes into effect as soon as the will-maker and any other persons with parental responsibility, have died.

Costs of becoming a Legal Guardian

The costs of becoming a Legal Guardian will, in most cases, be limited to the costs involved in making a Will.

If you have any further questions about this emotive subject or would like some advice about making a Will and including a provision for Legal Guardianship, please contact Savigny using the details below.