The appointment of guardians for minor children is a difficult and emotional decision, as a guardian will be responsible for all major decisions about the child and their welfare after the parents' deaths, including living arrangements and education.
A parent who has parental responsibility for a child may, by Will, appoint a person to be a guardian of the child after the parent's death. The concept of "parental responsibility" (introduced by the Children Act 1989) is delegated to the guardian and is intended to cover all the rights, duties, powers, responsibilities and authority which a parent has in relation to their child and that child's property. There is no limit on the number of guardians that can be appointed; although for practical purposes, it is usual to limit it to one or two.
It is sensible for parents to sit down with their proposed guardians to check that they are willing and able to carry out the role, and they understand what might be involved, especially if the guardians have children of their own. This can take time, so it is good to discuss these issues before making your Will if possible.
A guardian acquires parental responsibility but the appointment may not necessarily take effect on the death of the parent if the other parent is still alive, so appointments are usually best worded to take effect if the other parent has predeceased. Where parents have appointed different guardians, which is likely or possible where parents are divorced or have not been in a long-term relationship, the appointment of both guardians will take effect on the death of the surviving parent. Where possible, it is good for parents to coordinate their choice of guardians so that the arrangements work in practice, or to agree to appoint the same people.
Appointments of guardians are effective without the need for an order of the court, but the court retains an overall supervisory jurisdiction which can be used if a conflict arises. In order to try and prevent any difficulties, we recommend that parents have a Letter of Wishes (a personal letter, the terms of which would be persuasive but not legally binding) explaining their choice of guardians and giving guidance on how they would like their child to be looked after. This can bring parents great peace of mind, which is why appointing guardians is such an important part of your Will.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.