The appointment of guardians and the rights they have are governed by the Children Act 2004. A guardian can only be appointed in accordance with that act, A parent with parental responsibility may appoint a guardian by Will or by a document which he dates and signs and which provides that the appointment only takes effect on his death.
The appointee will become the child’s guardian if, at the death of the testator:
A. no parent with parental responsibility survived him; or
B. there was a residence order in his sole favour relating to the child.
If neither of these conditions is fulfilled, the appointee will not automatically become the child’s guardian but, as he has parental responsibility, he will be entitled to apply to the court to be appointed guardian.
Where a testator has children under the age of 18, the appointment of testamentary guardians should always be considered. The expression ‘testamentary guardian’ merely indicates that the guardian has been appointed by Will.
It is usual (but not essential) that the same persons are appointed guardians of all the testator’s minor children. When the guardians are to act only after the death of the surviving parent it is desirable that each parent should appoint the same people to act as guardian.
It is, of course, important that the testator should obtain the consent of the proposed guardian before making the appointment.
The appointed guardian can appoint a successor. It is, however, unnecessary to make express provision in the Will because the Children Act 2004 enables a guardian to appoint another individual to take his place in the event of his death.
Whether guardians should be trustees depends on the circumstances of each case. There are arguments for and against. The guardians are best placed to know the needs of the children and have the task of providing for those needs. On the other hand, the guardians may be regarded as the advocates of the children and the trustees as the judges of their conflicting claims. The problem is particularly acute when the residue is held on discretionary trusts for the children and, in that case, a sensible solution may be to appoint one of the guardians and, say two professional trustees.
Filed under: Legal Advice
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