Appointment of Guardians
It is possible for the testator with parental responsibilities to pass this responsibility to someone through a will to a guardian of their choice. The choice of guardians by the testator will hopefully reflect the way the parent would wish their child/children to be raised after their death and to allow the testator to have an input to the way the minor/s are raised.
This is process is known as a ‘testamentary guardian’i and is used where a parent wants to be able to pass the responsibility of care for his or her child/children by naming such person or persons in a will. This appointment need not necessarily be in a will, as it can be made in an additional document or deed providing it satisfies the requirements for appointing a guardian or guardians under the Children’s Act 1989ii as amended by the Adoption of Children’s Act 2002iii.
By incorporating the guardianship clause into a Will the testator (the parent) can also make important decisions regarding the welfare of the minor child and how his or her inheritance will be used in the process of raising the child/children in regards of educational and maintenance needs.
This will enable the trustees of the minor child/children to either draw on the income or the capital of the legacy left by the parents so that it can be used for either education or their welfare. This is usually catered for by the use of a trust fund and it may be desirable to include those named guardians as trustees of the fund, thus allowing them freedom to follow the testator’s wishes.
The will can direct how the parent would wish their child to be bought up; examples of this could be the testator may wish their child to follow a particular faith, for example, being raised as a practicing catholic or to attend a particular school. These directions are in no way binding but merely act as a statement of wishes of the testator.
If these wishes are ever taken into a litigious arena, or if there is any issues over the child and how they are raised, these statements in the letter of wishes can be read in the best interests of the child who is involved and it may provide some direction on what the testator would have wanted in regards to this matter.
In all cases it is important that any testator naming a guardian in their will should first of all ask those concerned to ensure that they are happy to undertake such a role. The guardian appointed can disclaim his or hers appointment by a written signed document within a reasonable time period.
Those individuals entitled to make a guardianship clause are those who are defined under section 3 of the Children Act 1989iv, defining the individual as having a ‘parental responsibility.’
A married couple with children from their marriage will both have equal parental responsibility. However, if the relationship is that of an unmarried couple, this limits the rights of parental responsibility to only the mother. The unmarried male parent does not have the same rights.
The father can however gain such right by marrying their partner, entering into a parental agreement order from the court thus showing him as the named father, or to get his name placed onto the child’s birth certificatev.
Should someone not be the child’s natural parent and enters into a marriage with the natural parent of the child, this role of step parent in the eyes of the law is not seen to carry the same parental responsibility for that childvi. However, this can be altered should the natural parent agree to give their new spouse the ‘parental right’ under a court order (i.e. the child’s step parent).
The Children Act 1989vii provides that an appointment of a guardianship is intended to only take effect following the death of both parents and it must be in writing, dated and signed. Such document should also be witnessed signed and dated. An appointment need not be made within a will and this is otherwise known as an informal procedure.
The Children Act 1989viii outlines any such appointment in a will and states this must cover the specific requirements of section 9 of the Wills Act 1837ix. This means it must follow the requirements of the document in it needs to be signed, witnessed and dated.
In terms of the appointment it is often worded that the appointment will only come into effect on death of both of the parents, if one parent remains he or she will still keep the parental right to the child unless they are unable to act and therefore the guardians named in the will must undertake their role at this point.
There is an exception to this rule where there is a ‘residence order’ in favour of one of the parents. For example Mr X and Mrs X have been divorced for 3 years and there is a custody order in force which states that the children live with Mrs X. Mrs X dies and has appointed Mr Z as guardian. Mr Z will become guardian on the death of Mrs X and will share parental responsibility with Mr X. However should the above happen, Mr X would apply to the court to get such an appointment of guardianship terminatedx.
It is important to note that the Children’s Act 1989xi expressly provides that an appointee can appoint another person to take their place in the event of their own death. It is also worth noting that that a testator can, in his or her will, also select levels of guardian/s in event that their first choice of guardian/s is unable to act.
This election of guardianship will only come into effect in the following situations as dictated under the Children’s Act 1989xii making the appointed guardianship effective,
a) on death of the testator;
b) where neither parent is able to continue their parental responsibility;
c) if there is a residence order in the testator’s favour in the sole interests of the child.
Should any of the above situations not apply then the election in the will makes the guardian appointment effective.
This election of the guardian gives them the ‘parental responsibilities’ and the duties of looking after the child, but there are some differences compared to that of being the parent as follows:-
1) There a no succession rights.
2) On the guardians death the child under the guardianship of the appointee will not qualify under the deceased’s estate under section 33 of the Wills Act 1837xiii or under the per stirpes rule.
3) The court cannot make a financial order or property provision against the guardian under the terms of the Children’s Act 1989xiv.
4) However the child who is under the guardians care could potentially make a claim under the Inheritance (Family Provision and Dependants) Act 1975xv.
When appointing a guardian under a will, the testator may make a wish to leave the guardian with access to funds to assist in undertaking the role. This may mean the guardian will have a limited access to funds under the trust in order to make the necessary changes to adapt to absorbing the testator’s child/children into their life, i.e. an extension to a house or making an investment into a larger residence to enable them to undertake their role.
There are advantages and disadvantages of allowing the guardians access to such funds. The advantage of allowing the guardians access to such funds is where those guardians appointed need to make decisions for the benefit of the child they can do so quickly and easily. However, the disadvantages could mean that the child’s legacy is at risk, in that any funds could be misdirected or should the guardian be made bankrupt or die those funds used could be lost to another party.
The best way to ensure that such problems are avoided is by the use of either a Will based trust or by directing funds to a lifetime trust that has been set up previously.
These trusts can be run by a mixture of trustees (which might include the guardians as well), ensuring the trust is run effectively.
The use of these type of trusts are an essential part of planning for a minor who is bereaved as it will ensure that the child’s legacy is safe guarded. The guardians can still access the funds of the trust, whilst being monitored by the independent trustees thus ensuring funds are not miss-directed.
The testator needs to consider the following points,
1) Are the guardians the best people to control your children’s direction over anyone else?
2) Can the guardians be trusted to make financial decisions or would others need to be involved?
3) Are the guardians happy to act?
4) Do the guardians need any financial assistance to accommodate your wishes in taking on this role?
5) Would it be beneficial for the trustees to provide some independent third parties to take part in any decisions which need to be made, i.e. to make the right decisions morally with regard to any legacy or give good direction in the case of any financial decisions with regard to investments?
6) In some cases should the guardians need to consult with a third party ensuring they are acting in accordance with the deceased parents’ wishes?
We can see that the role of appointing a guardian is one which cannot be taken lightly and there are many pros and cons which need to be considered. The appointment of any guardian should be carefully considered by the testator and talked over with them to ensure that all the wishes of such testator are met and the guardians understand how the child should be raised.
However the most important part is we need to ensure that clients with young children are actively considering this situation, and to ensure they put these requirements into their wills to ensure their minor children are protected if the worst was to occur.
i Children Act 1989 section 2 and section 3
ii Children Act 1989 section 5(3)-(5)
iii Adoption and Children Act 2002 section 111
iv Children Act 1989 section 3 (1)
v Children Act 1989 section 4
vi Children Act 1989 section 4A
vii Children Act 1989 section 5(3),5(4),5(5)
viii Children Act 1989 section 5(3),5(4),5(5)(a)
ix Wills Act 1837
x Wills, Administration and Taxation Law and Practice 10th Edition, Sweet & Maxwell, John Barlow,
Lesley King and Anthony King.
xi Children Act 1989 section 5(4)
xii Children Act 1989 section 5(7)-(9)
xiii Wills Act 1837
xiv Children Act 1989
xv Inheritance (Family Provisions and Dependants) Act 1975, section 1(1)(d) and section 1(1)(e)