Appointing Guardians in a Will

It is an unfortunate fact of life that there may come a time when you, or someone close to you, will have to make provisions in a will for the guardianship of children. It is a subject that many refuse to tackle head on but alas it is something that, if you are a parent and your children are under the age of eighteen, you should be prepared for.

What is a Guardian?

A guardian is an individual who is charged with the responsibility of looking after your child/children in the event of your death.

Who Can Be a Guardian?

Any adult of your choosing can be a guardian to your child/children. This can be a close family friend with whom the child/children already have a bond with, or a family member not already directly involved in their care, such as an aunt or uncle.

It is important to take into account beforehand the relationship the child/children has with the person or persons you intend to appoint as their guardian.

What Does a Guardian Need To Do?

Should the worst happen and your designated guardian has to take over a duty of care to your children they are responsible for their care, health and general well-being. This obviously includes feeding and clothing them, ensuring that their education and current standard of education is maintained, and also continuing to instil in them the difference between right and wrong.

Moral guidance is a huge factor in the upbringing of any child, and the person or persons you entrust your children to must be able to carry on instilling this sense of moral decency and respect for others.

Appointing a Guardian

If you are suffering from a terminal illness - or simply wish to put your affairs in order should any unforeseen circumstances occur - it is obviously important to inform the person/s you wish to be guardian/s. It is something that requires a lot of contemplation and discussion before a decision is reached, so do allow them that time and space to think it through. Do not make any rushed decisions or appoint someone as guardian without first consulting them; likewise if there is no partner or other parent to speak of, consult with your remaining family – if there are any – before appointing a guardian.

If you do wish to appoint a guardian then your last will and testament should reflect this. You must include, in as much detail as you can, the reasons why you wish your designated guardian/s to take on the role of caring for your children.

It is important to ensure that you clarify your reasons for making this choice so that there can be no confusion over your mental and emotional state at the time of making the will.

You must also ensure that once the last will and testament has been drafted – or redrafted depending on the circumstances – that the person or persons you have chosen to be your children’s legal guardian/s do not sign the will as a witness. This is what is known as a ‘conflict of interest’ and as such can lead to the will being contested.

You should be aware that if a will with details of guardianship is contested then Social Services are legally obliged to step in and either; (a) make a recommendation for guardianship themselves or (b) remove your children into foster care until such times as the conditions of the will have been clarified.

If you are in any doubt as to how to go about making these provisions in your will you should speak to a solicitor who specialises in family law and they will be able to give you all the help and advice you need.

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