Appointing Guardians for Children

One of the most important things you must consider when becoming a parent is who might take care of your child or children, in the event of you or another parent being unable to. Whether a surviving parent is automatically responsible for a child on the death of the other parent depends on whether or not that surviving parent has parental responsibility under the Children Act 1989. As a basic rule a mother automatically has parental responsibility. If parents are married to each other both will have parental responsibility and this will continue even if those parents divorce. An unmarried father doesn’t automatically have parental responsibility but since 1 December 2003 providing a father’s name is on the child’s Birth Certificate and he is present when the Birth is registered, he will have parental responsibility. If nobody is left with parental responsibility, the question arises as to who will look after any minor children? It is possible to appoint Guardians under a Will whilst children are under the age of 18. If a person is to be appointed as Guardian it would be necessary to approach them first as clearly it is a very important role. A child’s Guardian has parental responsibility for the child throughout the duration of the appointment, that is in most cases until the child reaches 18. Again, this will only take effect if there is no one else surviving with parental responsibility.

When making a Will it is also important to consider how your children will be provided for as any capital cannot go to the children until they are 18. There would necessarily have to be a Trust with Trustees appointed. A Guardian can be a Trustee but careful consideration must be given to this. There is clearly a need for specialist advice in relation to who has parental responsibility and the careful drafting of a Will.

At Bell & Buxton we can assist with both of these matters. If you have questions regarding parental responsibility or indeed making a Will you can either contact us on 0114 249 5969 or attend one of our fortnightly free legal advice clinics at Beighton where we will be happy to discuss such issues with you.