WillsBack to Basics: What are Guardians?

In this month’s articles we are going ‘back to basics’ to refresh your knowledge on some of the more basic but often overlooked aspects of will writing. After all, even the most basic things change sometimes and we need to make sure we’re keeping up to date. This week we are considering testamentary guardians and parental responsibility.

What is a Guardian?

These are people appointed by the will who will look after a testator’s minor children after the testator has died. Their role will be to raise the children after the testator has died.

The guardians won’t make any decisions relating to managing the children’s inheritance. This is the role of the trustees of the will, although it is fairly common for some guardians to also be named as trustees.

By being appointed as guardians, the will gives the guardians parental responsibility for the children.

What is Parental Responsibility?

The legal definition of Parental Responsibility is the rights, duties, powers, responsibilities and authority which by law a parent has in relation to their child and their property. This includes:

• Providing them with a home maintaining them
• Choices about their medical treatment
• How and where they are educated
• Deciding their name

More than one person can have parental responsibility for the same child at the same time and where this occurs they can either act independently or together. Parental responsibility cannot be surrendered or transferred to another, however it can be arranged for another person to act on their behalf. Parental responsibility can be removed by the court and is extinguished when the child is adopted.

Who has Parental Responsibility?

The mother of a child will always have parental responsibility for the child. The father of a child may not always have parental responsibility for his child. He will have parental responsibility if:

• He was married to the mother at the time of the birth or later married the mother;
• He was registered on the birth certificate as the father for births after December 2003 or the birth was later re-registered with him as the father;
• A formal agreement was made giving him parental responsibility;
• The father has applied to the court for a Parental Responsibility Order.

If none of the above apply, the father will not have parental responsibility.

It is possible for others to gain parental responsibility. For example, a step parent can also gain parental responsibility by agreement with both parents or by a court order. Adoptive parents will gain parental responsibility.

Parental responsibility for same sex couples is a much more complicated situation. It is more difficult for male partners than female partners and the ease of gaining parental responsibility will vary from case to case due to a variety of circumstances.

When can a Guardian be appointed?

An appointment of guardians will only take effect on a person’s death if:

• No parent with parental responsibility has survived them; or
• Immediately before death a Child Arrangements Order (previously residence orders and contact orders) was in force in which the deceased was named as a person with whom the child was to live (unless the order was also made in favour of a surviving parent of the child); or
• The deceased was the child’s only (or last surviving) special guardian.