The appointment of guardians, and their rights and responsibilities, is governed by the Children Act 1989. In short, this includes the day-to-day care and decision-making regarding a child’s upbringing.
Guardians can only be appointed for ‘minor children’, meaning children under 18, and can only be appointed be those with ‘parental responsibility’.
What is parental responsibility and who has it?
Parental responsibility is defined as ‘all rights, duties, powers, responsibilities and authority which by law, a parent of a child has in relation to the child and his property’.
Parental responsibility is not always automatic and, therefore, not every parent will have the right to appoint guardians.
If the mother and father are married or in a Civil Partnership at the time of the child’s birth, they will both have parental responsibility.
If the mother and father are not married or in a Civil Partnership at the time of the child’s birth, then only the mother will have automatic parental responsibility; however, there are many ways in which an unmarried father can obtain parental responsibility and being named on the birth certificate is one of those.
Appointed guardians will obtain parental responsibility and will have the right to appoint new guardians.
Appointment and revocation of guardians
The appointment of guardians can be made under a Will, or other legal document. The guardian appointment will only take effect if there is no surviving parent who has parental responsibility for the child.
It is possible to appoint more than one guardian, but care should be taken if they do not live in the same property as this can lead to practical and legal issues.
If both parents have parental responsibility and they appoint different guardians, both guardians will take up the appointment, but only when the second parent dies.
Where one parent appoints a guardian in a Will but dies before the other parent who did not appoint a guardian in their own Will, the guardian named in the first Will will become the guardian.
Revocation can be made by making a new Will or in writing.
Choosing the right guardians
When deciding whether a particular person is suitable to act as a guardian, a number of factors should be considered, including but not limited to:
- Do their ‘morals and values’ align with yours?
- Do they have children of their own, and does this have any impact on their ability to act as guardian?
- Do they already have an established relationship with your child?
- Where do they live? Will your child be uprooted to a new location away from other family members, friends and their school?
- Ask them if they are willing to act as a guardian, as they can decline, even after you have died.
You can leave a letter of wishes for the guardians, setting out how you would like them to make decisions. However, as the name suggests, these are merely wishes and the guardians are not legally obliged to follow them.
Can I appoint someone who lives abroad?
Yes, although whether the appointment can or will take effect may depend on the immigration laws where the guardian lives. It may be that a visa, or other legal applications need to be applied for beforehand, and what if entry is rejected?
You should investigate the foreign legal requirements before appointing a guardian who lives abroad, and should consider appointing a substitute guardian in the UK.
Failure to appoint guardians
In the absence of a guardianship provision in your Will, or other legal document (and assuming there is no surviving parent with parental responsibility), the decision will be determined by the Court.
Appointment or revocation of guardians can be one of the most important decisions you make and taking legal advice is recommended.
Contact us today on 01737 854 500 or email [email protected] to make an appointment to find out more.