3 September 2021 by

Who looks after your child if you’re not there?


A Will is one of the most important documents we can all make for ourselves, irrespective of our circumstances.

It is a document we hope we don’t have to think about until we are much older. However, it can do more than just making financial provision for your loved ones on your death.

If you have a child who is under the age of 18 at the time of your death, have you considered what would happen to him or her?

A Will allows you to make clear who you wish to appoint as legal guardian or guardians for your child in the event you pass away before they attain the age of 18.

At first instance, anyone with parental responsibility will automatically take guardianship over your child on your death. Thus, when you pass away, if the other parent is still alive, the surviving parent will normally continue to have full responsibility for the child.

However, if on your death there is nobody with parental responsibility over your child then, without appointing legal guardians, you could be at risk of passing the responsibility for your child to the court which could mean your child is taken into care until the court appoints a guardian. This is not ideal, as the court will not necessarily appoint the person or persons you would have preferred to take care of your child.


Who has parental responsibility?

A child’s mother automatically has parental responsibility from birth of the child.

A father has parental responsibility if he:

  • is married to the child’s mother at the time of birth;
  • subsequently marries the mother of the child after birth;
  • is named on the child’s birth certificate;
  • enters into a parental responsibility agreement with the mother; or
  • obtains a parental responsibility order from a court.


Appointing a legal guardian in your Will

You can appoint more than one guardian and/or a substitute guardian or guardians. To avoid any conflict, separated parents should ideally consult with each other and appoint the same person(s).

Your chosen guardians are authorised to appoint replacement guardians for your children in their own Wills should anything happen to them. Therefore this is something to take into account when thinking about and discussing guardianship.


What to consider when appointing legal guardian(s)
  • The age/health of your legal guardian(s). It is only natural to want to choose your own parents to be legal guardians. However, consideration should be made of their age and their mental and physical health.
  • Where applicable, it is also important to consider the existing relationship between the child and the person or persons you wish to appoint as the legal guardian(s) of your child.
  • Geographical location is another important factor to consider. How practical would it be for your child to have to move locations if your chosen guardian(s) are not nearby? Carefully consider how your child might feel if they had to relocate and most likely move schools.
  • You might wish to appoint guardians who live abroad. Although this is not impossible, it is recommended you check the immigration laws of that country in these circumstances as your child might be prevented from moving due to immigration controls.
  • Last but not least, who do you trust to raise your child if you’re not there? Think about someone whose values, principles and thoughts you can relate to and who you believe will be able to raise your child as you would have, in your absence.

Picking a guardian or guardians is not always an easy decision to make therefore it is vital you seek professional advice and assistance. If you have children under the age of 18 then don’t delay making a Will to ensure they are well provided for and you have guardians in place for them.

For further advice, guidance and assistance on Guardianship or making a Will please contact a member of our Wealth and Estate Planning team.

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