Where clients have minor children, they should always consider who they will be naming as guardians for their children. They are free to name any person that they wish, but there are a number of different things that they should consider.
The clients should always discuss the appointment with the proposed guardians in advance. Guardians are not bound to accept their appointment and could disclaim it.
You should consider the location of the proposed guardians. Do they live close to the testator, which would allow the children to continue attending the same schools unaffected, or alternatively would they be willing to move? If not, how would the children be affected by having to move away from their school and friends to live with the new guardians?
The clients may consider guardians based abroad; a further consideration here would be whether the children would be able to obtain visas to be able to go abroad. It would be advisable for replacements to be considered in the UK in case it is not possible for the children to live abroad.
Personality and values
If the children are older, the relationship between the children and the proposed guardians should be considered. Do the children and the guardian get on well? A guardian that the child knows well and gets on with is advisable.
The guardian’s own personality and values should also be considered to ensure that the guardian would bring up the children in the same way as their parents, for example if they have the same cultural and religious values as the parents.
The age of the guardians should also be considered here. Older family members may be happy to accept guardianship now, but would they be able to continue to manage ten years later? It may be worthwhile considering a younger reserve guardian in case the proposed guardian decides that they are no longer able to look after the children at the time of death.
You should consider if the proposed guardian has children of their own and if so, how many and what the relationship is like between those and the clients’ children. If the proposed guardian does have children, you should also consider whether they would be able to manage the additional responsibilities of being guardian to the client’s children.
Number of guardians
We advise against appointing a large group of friends and family as guardians in a will and wishing for them to ‘sort it out’ between them. This could lead to all those named gaining parental responsibility if members do not disclaim their appointments. If a large number of people are appointed, each potentially with different views on how to bring up a child, the wellbeing of the child could potentially be overlooked and conflicts could be caused.
If family members cannot agree on decisions, such as where the child is going to live, an application would need to be made to the courts to make a decision.
Rather than naming a large group and wishing them to ‘sort it out’ we would recommend that the clients themselves decide on who should act as guardian after discussions with the proposed guardians.