With the increased risks of a global pandemic, we all need to think about worst case scenarios. Now is the time either to prepare a Will or to review and update your existing Will if you already have one.
If you have children, you should also think about appointing a guardian. Appointing a guardian gives the person you choose the rights, duties, powers, responsibilities and authority to make decisions for your child in the same way that a parent who has parental responsibility (PR) can.
Appointing a guardian does not have to be done in a Will. You can agree on an informal basis who would look after your children in the event of your death. However, an informal agreement would not grant the guardian PR meaning your guardian would not be able to decide which school your child should attend or what medical treatment your child should have, as well as the other day to day decisions parents make. In order for a guardian to make these decisions as a parent would, your appointment needs to be in writing, signed and dated. In practice, guardians are often appointed in a Will as appointments are only intended to take effect in the event of death.
It is important to understand when an appointment of a guardian will or will not take effect and what this may mean in practice.
Your appointment take effect immediately on your death if the child’s other parent has predeceased you or if he does not have PR for your child.
A child’s mother always has PR. A child’s father has it if he was married to the mother at the time of the child’s birth, if he was named on the child’s birth certificate (and the child was born on or after 1 December 2003) or if he has been given it by way of a written agreement with the mother or by court order.
If your child’s other parent is still alive at the time of your death and has PR, your appointment of a guardian would not take effect until the other parent’s death.
The only exception to this is where you have a child arrangements order made by the court which states that your child lives with you. In that situation, your appointment of a guardian would take effect even if the other parent with PR is still alive.
The arrangements made for a child in the event of your death, including where and with whom the child lives, will be determined in the first instance by those with PR, with the court only getting involved if problems arise.
Appointing a guardian does not automatically mean that a child should live with that person, just that the guardian is entitled to be consulted in relation to a child’s welfare and to make decisions about the child. In practice, this means that issues can arise, for example where two parents appoint different guardians or where there is a guardian and a surviving parent who does not have PR and these people cannot agree. In this case, it is likely that an application will be made to the court for a judge to resolve the dispute.