Welcome to the first in a new series of articles from the SWW Technical Team; Common Questions in our Inbox. We thought it would be really useful to set out the queries we receive from our members in our technical inbox. For this first instalment let’s talk about one of my favourite subjects – guardianship.
Who can be a guardian?
Anyone can be a guardian as long as they are over the age of 18. Remember that anyone who is appointed as guardian will have parental responsibility for the children and therefore can make decisions on anything such as:-
- choosing and providing for the child’s education
- consenting to any medical treatment for the child
- providing support for the child – emotional as well as financial
- providing shelter and care for the child
- general maintenance i.e. clothes and food
Appointing a guardian is therefore a decision that should not be made lightly.
Can a sibling be appointed as the guardian?
As long as the sibling is over 18 then yes. However, if the guardian appointment were to come into effect when the guardian themselves are very young, consideration would need to be given as to whether they would realistically be able to take on this huge responsibility of caring for the minor child both financially and emotionally, as well as themselves. Secondly, would this be in the best interests of the minor children? This is something as a will writer you would need to raise with your client.
We would advise that a substitute guardian is also appointed. The reason for this is that if the appointed guardian for any reason was not able to act or simply did not want to take on the role, there would be someone else to step in. If a substitute was not appointed, the children could be placed in care while waiting for a family member or friend to come forward and be appointed by the Court to be the child’s guardian.
Can a guardian abroad be appointed?
The short answer is yes. However, if the children were born in the UK, the following points should be discussed with your client and taken into account when deciding whether choosing guardians abroad would be the best choice for the children:-
- Lifestyle – the children have been born and raised in the UK so are used to a particular lifestyle, have a group of friends and are settled in school also.
- Stability – it is important for the child to be in a stable environment
- Personality – do the selected guardians have certain personality traits i.e. patient, caring and trustworthy?
- Capacity – do the selected guardians have the mental and physical ability to raise the children.
Another point to raise with your client is whether visas would be required and secondly, who would care for the children until visas are granted. In such circumstances, it may be advisable to name a temporary guardian, as we’ll look at next.
Can a temporary guardian be appointed?
Yes, and we would advise this is included in the Will where the guardian is abroad and is either waiting to come to the country to care for the children or alternatively where the children are waiting to go over to the country where the guardian is.
Does a father automatically have parental responsibility?
The father will have automatic parental responsibility if:
- He was married to the child’s mother at the time the child was born.
- He married the child’s mother at any point after the child was born.
- They were unmarried, but he jointly registered the birth with the mother (is on the birth certificate).
- They completed a PR agreement granting him parental responsibility.
What if the mother does not want the father to have the children on her death?
If the father has parental responsibility and there is no child arrangements order in place then any appointment of guardians in the mother’s Will would only take effect once both she and the child’s father have died. If she died, the father would automatically take responsibility for the child.
Nothing in the Will can vary this. Any dispute over the father’s appropriateness and direction that a more suitable guardian be appointed would be a matter for the Courts to decide. The client should also be encouraged to write a letter of wishes to accompany her Will and give guidance to her appointed guardians, which can include encouragement to apply to the Courts for guardianship if the appointment in the Will doesn’t take effect, explaining why.
Can a money gift be left to the guardian to be used for the children?
A money gift can be left to the appointed guardian. However, if it is to be used for the children, we would advise this sum of money be placed in trust. The risk of giving an outright money gift is that the guardian could spend it on themselves or alternatively, they accept the appointment, receive the sum of money then step down as guardian where there would be no recourse.
Can a guardian be appointed for a disabled adult?
I’m afraid it is not possible to name guardians for adults in a Will. If a client wants to name someone for the disabled child to live with and look after, this should be set out as a non-binding expression of wish in the Will.
Have a question of your own for the SWW Technical Team*? Send it to us at [email protected] and where possible, we’ll advise.
*Technical advice is available only to full members of the SWW (MSWW^) and is provided by email only. For more information about accessing our technical advice service, please see here.
