Why you should include guardianship in your Will
Posted on 27th January 2025

If you die before your children are under 18 they will need someone to care for them.
You can include who will act as their guardians in your Will.
What is a guardian?
A guardian takes on legal responsibility to look after your children if they’re under 18. This is important if their other parent is already dead.
Most people choose one person as a guardian, but you can choose a couple, for example. You can also choose a separate guardian for each child.
Parental responsibility
Guardians accept parental responsibility for your child or children. They will have the same responsibilities as you do, as their parent. This includes making decisions about their health, schooling and where they will live.
Can parents become guardians?
Mothers automatically have parental responsibility. Fathers have parental responsibility if married to the mother when a child is born or are named on the birth certificate. In this case, if one parent dies the other can take over parental responsibility and a guardian isn’t needed. Only someone with parental responsibility can appoint a guardian.
If a father doesn’t have parental responsibility, you can name them as a guardian. Alternatively, fathers can sign a parental responsibility agreement or obtain a court order. Named guardians don’t replace parents, but if there’s a dispute over care the Courts might become involved.
Appointed guardians take responsibility for a child if their father doesn’t have parental responsibility when the mother dies. If the father wants to care for the child he must apply to Court.
The benefits of guardians for your children
By appointing a guardian, you can make sure someone you trust will look after your children if you die.
If you don’t appoint a guardian, the courts will decide who will look after your children. This could be someone you wouldn’t have chosen, so it’s better to make the decision yourself.
Your children might go into care temporarily if you die and haven’t appointed a guardian.
Who to choose as guardians for your children
A guardian is a person over 18. You can’t appoint a company, for example. Many people choose the children’s grandparents but it’s important to consider their age and health. Of course, they must also accept responsibility for bringing up children in their later life. Aunts or uncles are also a good choice, depending on the size of their own families. Close friends are another option.
When choosing guardians the priority is who will best meet the needs of your children. Considerations might include:
whether your children know the guardian you choose
the size of the guardian’s own family
where the guardians live
how someone might bring up your children
whether your children will have to change schools
the beliefs, morals and lifestyle of your chosen guardian
their health and fitness
the financial implications of guardianship.
Your chosen guardian doesn’t have to accept the role so it’s important to share your thoughts with them. You can also appoint separate trustees in your Will to manage funds on behalf of your children.
Appointing a guardian in your Will
The appointment must be:
made in writing
signed by the person making the appointment
dated.
If you have a Will which doesn’t need other changes, you can appoint guardians using a codicil. You can also include alternative guardians in case someone changes their mind at a later date.
Usually, a guardianship comes into effect when both people with parental responsibility die. Guardianships end automatically when your children reach 18.
If parents are divorced, for example, and choose different guardians, they will take up the responsibility when both parents die. They must then agree how to bring up the children.
A guardian doesn’t have to use their own resources to bring up your children. You might want to include funds in your Will to help. Trustees could pay school fees, clothing, and day to day expenses or lend money to guardians to buy a larger property. You can leave a letter of wishes to help trustees use money in your estate as you would wish. Guardians can also apply for an allowance as well as child benefit.
If you have parental responsibility for your stepchildren, you can appoint guardians for them in your Will. However, if you die and the children’s other parent is still alive and they have parental responsibility, they will care for the children.
If you divorce, your Will is still valid, so your choice of a guardian is unchanged. However, if you remarry your Will is void and you must make a new one and include your choice of guardian.
Please get in touch if you would like to add guardians for your children to your Will or write a new Will.
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