Guardianship: what exactly is this? Who can be appointed as a Guardian and who will care for my children if I die?
3rd April 2023
The term ‘Guardian’ for lawyers means a parent or a person who takes over a parent’s responsibilities after their death.
Parental Responsibility (“PR”) means the rights and responsibilities to make decisions for a child who is under the age of 18.
Mothers and married parents always, have PR. Fathers who are named on the child’s birth certificate, or who enter into a formal agreement will also have PR. The court can also make an order giving PR.
But what happens if one or both parents die or if a single parent dies and the other parent has PR but has had little or nothing to do with the child. Who cares for the child then?
In blended families, parents sometimes assume that a step-parent will automatically take on care of their children. However this will not be the case where the step parent does not have PR.
Parents need to give consideration to appointing a guardian in their Will. A parent may understandably not want to consider their own death, particularly if they are in good health, however in order to ensure their children are cared for by someone they trust and whom the children are familiar with, this issue needs to be considered.
Anyone can be appointed as a guardian as long as they are over 18. In addition, more than one person can be appointed as a guardian.
Appointing a guardian can be achieved by a provision in your will. This allows the parent to have that conversation with their chosen guardian in advance to ensure that they are happy to take on the role should it become necessary. When appointing a guardian, a parent can also include their wishes as to how they would like the chid to be raised e.g., in relation to religion or schooling decisions.
A guardian is given PR in the event of the death of the person appointing them and therefore takes on the responsibilities that PR provides. If there is another person who has PR for the children, then the guardian will share this.
Appointing a guardian can be achieved by way of provision in your will. Applications can be made to the courts by a proposed guardian, but they would need to attend a family mediation meeting first. When considering such an application the court will have regard to the following:
- The child’s own wishes and feelings and their age and understanding
- The child’s relationship with the prospective guardian
- How capable the proposed guardian is of meeting the child’s needs
- The recorded wishes of a deceased parent and the wishes of the child’s nearest relatives.
If the person appointing the guardian dies and there is no other person with PR, then the appointment of the guardian will take effect immediately. If there were child arrangements order in place naming the guardian as the person with whom the child should live, then the appointment will also take effect immediately even if there is another who holds PR. The guardian will then share PR with that other person.
If the surviving parent was also named in the child arrangements order as a party with whom the child should live, then then appointment will not take effect immediately. If there is a dispute regarding where the child should live, then the parent of the proposed guardian would need to make an application to the court. The parent could also apply to have the guardianship terminated. The appointment of a guardian will also not take effect immediately if the surviving parent has PR and there is no order in their favour. It would not take effect until the surviving parent had died.
The guardianship would end when the child reaches the age of 18 or if an application to terminate the guardianship was made to the court before then and succeeded.
Article written by Natasha Abel