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Expat Wills

Guardians for Children

Appointing Guardians for your minor children in the UK

A guardian of a child is someone who is appointed to take over responsibility for a child in the event of the death of the child's parent or other carer. The appointment is not only necessary if a child has property or money but also to provide day-to-day care for the child, as the guardian will have the right to decide on the child's upbringing, health care, religion and education. It is very important to ensure that the right person or persons are appointed as guardians in accordance with the law. It is unrelated to the appointment of guardians who look after children in public law care proceedings.

APPOINTMENT OF A GUARDIAN

If, on the death of the appointor of a guardian (even if the parents are separated or divorced):

the appointment of the guardian does not take effect until the death of the surviving parent with parental responsibility. Then effective appointments by both parents will take effect simultaneously: this can lead to conflicts between the two separately appointed guardians which the court may have to resolve.

A parent of a child can only appoint a guardian to act jointly with the surviving parent if the deceased parent with parental responsibility had a residence order in his or her favour and in force at the date of his or her death and it was not a joint or shared residence order with the surviving parent or he or she was the child's only (or last surviving) special guardian. This situation of an appointed guardian acting jointly with a surviving parent can lead to some bitter and contested children proceedings as the surviving parent often resents the interference and involvement of the guardian appointed by the deceased parent from whom he or she may have been divorced etc. Great care and sensitivity is needed and the matter is invariably better dealt with by specialist children lawyers. The outcome is determined by the paramountcy of the child's welfare.

A properly appointed guardian of a child may also appoint another individual to take his or her place as the child's guardian on his or her death. However, if there is a surviving parent with parental responsibility and the guardian does not have a residence order in his or her favour (or was not the last surviving special guardian) then the appointment by the guardian will only take effect on the death of the surviving parent.

How is a guardian appointed?

Under the 1989 Act, the appointment by a parent or guardian will not be effective unless it is made in a written document and dated. It must also be signed by the person appointing the guardian, except in the case of a document signed at the appointor's direction, in his presence and in the presence of two witnesses who each then attest the signature. An appointment made by will (or other testamentary document) signed at the appointor's direction must be properly witnessed as required under the provisions of the Wills Act 1837

The court can also appoint a guardian (on specific application or in general family proceedings) if either:

The former applies to orphans or to children of unmarried fathers without parental responsibility. The latter applies even though the child may have a surviving parent, albeit without a residence order. In practice, the court is only likely to appoint a non-parent as sole guardian when the deceased, having a residence order in his or her favour, did not make a lifetime appointment and a third party is likely to be better able to care for the child than the surviving parent