An appointment of testamentary guardians is rarely considered by a 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 but is not limited to:
- 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.
Who has parental responsibility?
The mother of a child will always have parental responsibility for the child. The father of a child may not always have parental responsibility for his child. He will have parental responsibility if:
- He was married to the mother at the time of the birth or later married the mother;
- He was registered on the birth certificate as the father for births after December 2003 or the birth was later re-registered with him as the father;
- A formal agreement was made giving him parental responsibility;
- The father has applied to the court for a Parental Responsibility Order.
If none of the above apply, the father will not have parental responsibility.
It is possible for others to gain parental responsibility. For example, 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 partners and the ease of gaining parental responsibility will vary from case to case due to a variety of circumstances.
When will an appointment of guardians take effect?
An appointment of guardians will only take effect on a person’s death if:
- No parent with parental responsibility has survived them; or
- Immediately before death a Child Arrangements Order (previously residence orders and contact orders) was in force in which the deceased was named as a person with whom the child was to live (unless the order was also made in favour of a surviving parent of the child); or
- The deceased was the child’s only (or last surviving) special guardian.
The testator does not want the other parent to act as guardian for their children, is this possible?
This will depend on whether the other parent has parental responsibility or not, or whether there is a Child Arrangements Order in force.
If the other parent does have parental responsibility, and there is no Child Arrangements Order in force, any guardianship appointment would not take effect if the other parent survives.
The testator wants to name their brother-in-law as guardian, but only if they are married to their sister at death, if this possible?
A condition can be included in the Will to apply to the initial appointment, so that the brother-in-law is only appointed as guardian if he is married to the sister at the time of death.
However, if he is appointed and they later divorce or the sister dies, it is not possible for his appointment to be revoked by that event. Once a person has parental responsibility it is not possible for the will to revoke it. In such a case, an application would need to be made to the court to remove her as a guardian.
The testator wants to name various members of their family and wants them to sort it out between them after death, is this possible?
This is possible, but it is highly inadvisable. 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 in decisions, such as where the child is going to live, an application would need to be made to the courts to make a decision.