Appointment of Testamentary Guardians

The appointment of testamentary guardians is rarely considered by parent, but it is highly desirable that they should consider who should look after their children if both were to lose their lives while their children are under eighteen.
The appointment of a testamentary guardian can only be made by a person with parental responsibility.

What is Parental Responsibility?

The legal definition of Parental Responsibility is the rights, duties, powers, responsibilities and authority which by law a parent has in relation to their child and their property. This includes:

  • Providing them with a home maintaining them
  • Choices about their medical treatment
  • How and where they are educated
  • Deciding their name

It does not include a duty to maintain the child financially, all parents have this duty regardless of whether they have parental responsibility. More than one person can have parental responsibility for the same child at the same time and where this occurs they can either act independently or together. Parental responsibility cannot be surrendered or transferred to another, however it can be arranged for another person to act on their behalf. Parental responsibility can be removed by the court and is extinguished when the child is adopted. The government page on Parental responsibility also has some great information.

Who has it?

A child’s birth mother will automatically have parental responsibility, as will the biological father will also automatically have it if they are either married to the birth mother or are registered on the birth certificate after December 2003. If neither of these apply the biological father will not automatically have parental responsibility.
It is possible for the biological father to gain parental responsibility. If the father later marries the mother he will gain parental responsibility. He can make a formal agreement with to share parental responsibility which would need to be witnessed by a court officer. Alternatively, with the agreement of the mother, the birth can be re-registered with the father on the birth certificate.
If the mother does not wish to make a parental responsibility agreement or re-register the birth, the father can apply to the court for a Parental Responsibility Order. Very few applications are refused by the court and will only be refused if it is not in the child’s best interests for them to have parental responsibility.
It is possible for others to gain parental responsibility. A step parent can also gain parental responsibility by agreement with both parents or by a court order. Adoptive parents will gain parental responsibility as will a guardian.
Parental responsibility for same sex couples is a much more complicated situation. It is more difficult for male partners than female and the ease of gaining parental responsibility will vary from case to case, depending on circumstances such as when the child was conceived, whether it was conceived using artificial insemination and whether the couple are either married/in a civil partnership or neither.
For more information on whether a same sex couple has parental responsibility, see ‘A guide to lesbian parenting’ by Rights of Women for female couples and ‘Parental Responsibility for Gay Couples’ by Birkett Long and ‘A guide for gay dads’ by Stonewall for male couples.

Appointing Guardians

The appointment of a guardian is governed by section 5 of the Children Act 1989. A person with parental responsibility can appoint a guardian in their will or by another document which is signed, dated and witnessed by two people. This will then take effect at their death if either:

  • No other person with parental responsibility survived them: or
  • There was a residence order in their sole favour relating to the child

If neither of these are fulfilled, the person(s) appointed will not become the child’s guardian.
A guardian has the ability to appoint another individual to act in the event of their death and so it is unnecessary to make express provision in the Will. It is advisable however that a reserve appointment is made in case first choice predeceases the testator.

Who should be appointed?

There are a number of factors that should be considered when deciding who should be appointed as a testamentary guardian:

  • Does the child already have a relationship with that person?
  • Does this person live close to the parents? If not would the child cope with having to move far away?
  • Are they emotionally, physically and financially capable to look after the child?
  • What is the person’s parenting style? Is it similar to the parents?
  • Where a child is older, their opinion could be sought.

It is essential that consent is obtained from any intended guardian before the appointment is made as a person appointed as a guardian can renounce this appointment, leaving the appointment of the child’s guardian in the hands of the court who may choose a person the a person that the testator would not approve of.
It is desirable that both parents appoint the same persons to act as guardians. If different guardians are appointed by each parent, all would receive parental responsibility. This would be impractical and could lead to disputes.
It is usual (but not essential) that the same persons are appointed guardians of all the testators’ minor children to ensure that children are not separated.

Number of Guardians

Parents will sometimes consider appointing a large number of family and friends to act as a ‘Committee’ of guardians. The biggest disadvantage of this is that, with a large number of people each with different views on how to bring up a child, the well-being of the child could potentially be overlooked and conflicts could be caused.
The common situation is to appoint two guardians who live in the same household, such as a sibling and their spouse, to ensure that the child has a stable environment.

Guardians as Trustees

Whether guardians should be trustees depends on the circumstances of each case. There are arguments for and against. The guardians are best placed to know the needs of the children and have the task to providing for those needs. On the other hand, there will be a potential conflict of interest, particularly when the residue is held on discretionary trust for the children as they could potentially advance money to themselves. A sensible solution may be to appoint one of the guardians and a professional to act as trustees.

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