Guardianship of Young Children


Liz Fyfe

You might think that making a Will is all about what happens to your money when you die, and in the main this is right!

You may have many different types of assets ranging from physical cash in savings, property, valuable personal possessions and heirlooms, and of course you want this to go to someone you choose. This is where a Will comes in handy.

Beyond the above however, a Will is a really key document that allows you to specify other things such as who will care for your children should the worst happen. A Will allows you to appoint a Guardian for a minor child, someone under the age of 18, which not only gives you peace of mind but assurance that you know your children will be well cared for.

What is a Guardian?

Appointing a Testamentary Guardian is the process by which a Guardian is appointed in a Will for a child by one or more of their parents. In simple terms this is a decision by the parent as to who they would wish to look after their children if they died before their children reached the age of 18.

An appointed Guardian is given parental responsibility in the event of your death (subject to the conditions below) and will then have the same rights and responsibilities as a parent would have when it comes to making a decisions for the child’s health, welfare, education and so forth.

​Who can be a Guardian?

You can appoint anyone who is over the age of 18 years to be your child’s Guardian. Often this is a family member such as a parent, brother or sister but this could be a close friend or anyone else you feel is appropriate to look after your child in the event of your death.

It is possible to appoint more than one Guardian, which can be useful in the event that your chosen Guardian is unable or unwilling to act and it is also possible to appoint substitute Guardians in case the original Guardian is unable to act.

When does the Testamentary Guardianship appointment take effect?

For married couples who are appointing Testamentary Guardians in their Wills, this will take effect on the death of the second parent.

For unmarried or divorced/separated parents, usually the surviving parent will have parental responsibility for the child and the Guardianship appointment will not take effect until such time as the surviving parent has also died unless you have an Order from the Court specifying that your child lives with you whereupon the Guardianship appointment would take effect immediately upon your death. If there is a dispute after your death as to whom your children should live with, this would need to be determined by the Court.

It is always a good idea to leave a Letter of Wishes with your Will to explain why you feel that your child should live with their Guardian instead of the person who has parental responsibility and this can then be used in any future application to be made to the Court after your death if there is a disagreement.

What is the difference between Guardians and Trustees?

Guardians are responsible for your child’s welfare whereas Trustees are responsible for administering any money held in Trust in your Will for your child’s maintenance and education.

Do these need to be the same person?

Trustees and Guardians do not need to be the same person and in fact often it is better that they are not the same person. Each has a different role to play and it can be beneficial to have separate people dealing with the administration of any Trust monies to ensure that these are utilised for the child’s benefit.

Here at Thornton Jones we have a highly skilled and experienced Private Client team who are able to help with the setting up of a Will to include the Guardianship of your children.

Call us at any of our three offices for a FREE consultation and to arrange an appointment.

☎️ Call our Wakefield office on 01924 290 029
☎️ Call our Garforth office on 0113 246 4423
☎️ Call our Ossett office on 01924 586 466

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