Parents can appoint guardians to cover such a scenario if they both pass away. Formally appointed guardians would have the legal authority and "parental responsibility" to care for children in the event of their parents’ early demise and would be responsible for their day-to-day care and decision making.
How do I appoint a guardian?
Parental responsibility: If you have "parental responsibility" for a child, you can appoint their guardian. Parental responsibility is not an automatic right, and, in some instances, it may need to be sought by a parent. Your child’s formally appointed guardian would obtain parental responsibility once their role commences.
Who has parental responsibility? Birth mothers automatically acquire parental responsibility. If both parents are married or in a civil partnership at the time of the child’s birth, they each acquire parental responsibility or if an unmarried father is named on the birth certificate. If none of the above apply, the other parent will need to obtain parental responsibility separately via an application to the court.
Appointing a guardian: The appointment must be in writing, dated and signed by parents. Parents should discuss the requirements further with a solicitor, to debate the finer details and any requests they have relating to their child’s upbringing. The best place to formally appoint a guardian is in a will.
What happens if a guardian changes their mind?
A guardian can end their appointment, at any time. Therefore, it is crucial to name a "successor guardian" to cover this scenario.
Before their role commences, the initial guardian can write to the successor to transfer their appointment. If the initial guardian wishes to transfer to their successor after their appointment has started, they must do so via a court application and seek permission from the family court.
What happens if a guardian hasn’t been appointed or the successor steps down?
If someone steps forward to become a guardian a court application will need to be made by them, the applicant, requesting permission for their appointment as a guardian.
If the successor guardian chooses to step down, they will also need to apply to the court to resolve the issue. Successor guardians should carefully consider this decision, as they may be the last option the court has before a child is placed into care.
What should I consider when appointing a guardian?
When deciding who to appoint you may wish to consider the following:
- Do their priorities and values align with yours?
- Do they have a positive and trusting relationship already formed with your child?
- Where are they located, and will this affect the child’s location and schooling?
A letter of wishes which will accompany your will can be left for guardians. This can set out how a parent would like their child to be raised and how decisions should be made about their upbringing. However, this is not a legally binding document, and it is only guidance for the guardian to follow.
If asked to be a guardian, what should I consider before agreeing?
It goes without saying that becoming a guardian is a significant decision. A few initial considerations are as follows:
- Can you support the children emotionally and financially?
- Are you located near the children? Would they have to move far away from their hometown, school, and friends to live with you?
- Would your moral and religious beliefs be a significant change for them?
- If you do not have children of your own, would you be suited to parenting?
- If you do have children, how would this affect them?
If only informal discussions have been had with friends or family about appointing them as guardians, formal action will be needed to ensure their appointment is on a legal footing. You should speak with your potential guardians first and obtain their consent to the appointment, ideally before speaking to a solicitor about making or updating your will.