If you have children under the age of 18 a Will is essential. You should use your Will to appoint guardians for them, even if you have no material possessions to leave to them.
If you die without appointing guardians for your children, you hand the local authority the power to decide who, if anyone, becomes their guardian, which may force those best placed to look after your children to apply to the court to compete for the right to do so.
Although this can be a particularly sobering situation to contemplate, the appointment of a guardian can guarantee some measure of familiarity, certainty and reassurance to your most vulnerable dependants.
Appointing a guardian in your Will ensures that your children will be looked after by someone whom you have chosen because you know that they care for them and will carry on bringing them up as you had intended. By assuring your children’s emotional well-being in this way you are, in effect, continuing to parent after you are gone.
The appointment of guardians is governed by section 5 of the Children Act 1989. Guardians may be appointed by anyone who has parental responsibility for a child. “Parental Responsibility” is defined by section 3(1) of the Children Act 1989 as being “the rights, duties, powers, responsibilities and authority which by law a parent of the child has in relation to the child and his property”. It includes rights and duties with regard to education, choice of religion, the administration of a child’s property and choice of residence.
The appointment of a guardian takes effect if, at your death:
- No parent with parental responsibility survived you, or
- There was a residence order in your sole favour relating to the child.
The birth mother always has parental responsibility. Unmarried fathers of children born before 1st December 2003 do not have parental responsibility. The father only has parental responsibility in the following instances:
- If he was married to the birth mother at the time of the birth – or subsequently marries her
- If he was awarded parental responsibility either through a parental responsibility agreement with the birth mother or through a court order (including a residence order)
- For a child born after 1st December 2003, if he is named on the child’s birth certificate
If the birth mother wants the natural father to look after their child after her death, she must make a Will to appoint the father as Guardian. Parental responsibility may also be acquired through the act of adoption.
If everyone who has parental responsibility has died, the local authority will have parental responsibility and be responsible for the care of the child – which may be with relatives, foster carers or in a residential home.