What is a guardian?

One of the biggest worries for parents is who will look after their children in the unlikely event that they both die before their children reach 18. By appointing guardians for your children you can be assured that they will be cared for by people you trust. 

It is a common misconception that godparents or other family members (such as grandparents, aunts, uncles, etc) will automatically be a child’s guardians but this is not the case, no matter how likely it is that they would be appointed. 

The role of a guardian is to provide day-to-day care for a child as well as to make important decisions about that child’s upbringing; from education and welfare to religion and medical treatment.

If both parents (or those people who have parental responsibility for the child) die without having chosen a guardian, the court will have to appoint someone but they won’t necessarily choose the person you would have chosen. So to ensure that the correct people look after your children, it is very important that you appoint guardians during your lifetime.

It isn’t just the child’s parents who might have to consider appointing guardians, but anyone who has parental responsibility for a child. So, if you are already a guardian of a child you should consider what provision should be made for them if you die before they reach 18. 

When parents are divorced or separated

Issues can become more complicated when parents have divorced or separated as, although they may both still have parental responsibility for the child, they may choose different guardians. If both parents die before the child is 18 this could result in two very different individuals being appointed as joint guardians; that is an obvious cause of difficulties, not to mention upset for the child.

In order to avoid this happening, it is advisable for parents to choose the same people to be guardians to ensure certainty and stability for the child. The appointment of guardians in the will should also only take effect when the second parent dies.

Can you pay guardians?

Guardians will not automatically be paid for looking after your children. Any money that you have left your children will be able to be used by the guardians for their living costs, school fees and holidays. The money would be held on trust for your children, and the trustees would make funds available to the guardians.

However, if you would like some money to go directly to the guardians for their own use, you will need to make a specific gift to them in your will. 

Can you leave guardians instructions?

After you die, the guardians will be responsible for the upbringing of your children, but this does not mean that you cannot have any say in it. You can leave a letter of wishes with your will, addressed to the guardians, setting out your wishes for your children on key issues such as schooling, welfare and religion. Although the guardians are not legally bound to follow your wishes, it is likely that they will if your choice of guardians was made carefully.

You may also decide to leave your chosen guardians a sum of money in your will to help them provide for your children. If you would like the guardians to use the gift for a particular purpose (for example, to move to a bigger house), you should include this in a letter of wishes. The guardians will not be legally bound to use the money for this purpose, but it is more than likely that they will follow your wishes.