Appointing guardians for children - "Little orphan Annie"

Pleased as I am at her ultimate good fortune, I must confess that, as a lawyer, I wonder why she had to endure all those hardships along the way. If only Annie’s parents had made wills and appointed guardians, her many trials could have been avoided.

What is true for Annie’s parents applies equally today: if you fail to nominate guardians for your children, the ultimate choice of their carers will be made by the Court.Most people who choose guardians for their offspring do so in their wills. Every adult should have a will anyway, but most people only think about making one when they marry, or have children.

Once a couple becomes a family, the parents place the child at the centre of their life. The thought of anything untoward happening to their child seems impossible to contemplate. But sadly some children do lose their parents before they reach adulthood. Who will then care for those orphans? If the parents take the trouble to appoint a guardian, the legal responsibilities and rights associated with parenthood (called “parental responsibility”) pass automatically to the chosen guardian. The guardian will be responsible for providing a home for the child, protecting and maintaining them, making decisions about care, health and welfare as well as education and discipline. If parents leave their assets to their child in their will, these can be used to support that child and to ensure the guardians are not out of pocket.

Parents of young children usually find making wills is a simple enough process and leaves them with the comforting feeling that, should the worst happen, their children will be safe and well looked after. The parents should together decide who to appoint to look after any children under 18. It is best to choose one person, or a couple. Don’t be tempted to keep both ‘sides’ of the family happy by appointing someone from each family group. If one guardian is based in Bromley and the other in Bridlington, how are they going to jointly ‘parent’ the children? This type of appointment can often be a recipe for a tug of love, or worse; bereaved children need consistency and security, not a family feud.

It is more difficult to decide on the best course of action if, as parents, you are no longer together. What if you both appoint different guardians? Who has the final say? The law provides an answer, but it is a tricky area to navigate. Just how tricky depends on whether you both have ‘parental responsibility’ (PR) or not and whether you can agree on a choice of guardian. Although all mothers, and many unmarried fathers, have PR, legal advice should be taken to clarify your individual position. If you do have PR, you can appoint a guardian in your will, although the appointment will not take effect if the surviving parent has PR; this trumps your choice of guardian. Your appointment will only take effect on the other parent’s death. If your children are all over 18 by this time, no guardian is needed. But if any children are still under age, and both parents appointed different guardians, there will be a conflict. This will need to be resolved – if not by the parties, then ultimately by the Court.

Although there may be some difficulties for parents who now live apart, for most couples, making the right choice in their wills can be straightforward and an easy way to help their own children avoid Annie’s plight.

For further information please contact Jill MacMahon.