Guardians may be appointed in your Will for children under the age of 18 years, and it is recommended that you appoint a maximum of 2 Guardians to act jointly. Before you do appoint someone to be Guardian, it is important that you discuss this with them first to ensure they are prepared to accept this responsibility.
Married Couples
The appointment of Guardians will take place only after the death of the second or surviving spouse.
Divorced or Separated Couples
The appointment of Guardians will normally take place only after the second death. However, a parent has the right to obtain a Residence Order through the courts (stating where the child is to live) or, if both parents agree, by entering into a Parental Responsibility Agreement (a type of contract). If either of these exists at the time of death, the appointment of Guardians by this parent will become effective and the Guardians will act jointly with the surviving parent.
Note: A Guardian is not automatically entitled to have the children living with them, and any disputes between the Guardians and the surviving parent will be settled by the courts.
Unmarried Fathers
If an unmarried father has not obtained parental responsibility (see below), he cannot make a valid appointment of Guardians. Furthermore, the father will not automatically become Guardian of his children on the death of the mother.
Unmarried fathers can obtain parental responsibility in one of the following ways:
- By being registered as the father of the child on the birth certificate (for children born on or after 1.12.2003).
- By entering into a written agreement to share parental responsibility with the mother of the child. A Parental Responsibility Agreement form can be obtained from your solicitor.
- By applying to the court for parental responsibility.
- By being appointed Guardian of the child by the mother.
- By marriage to the mother.
Unmarried Mothers
In situations where no other parent has parental responsibility, the appointment of Guardians will take place on the death of the mother of the child. If, however, the father has obtained this responsibility (see above) the appointment of Guardians will take place only after his death (unless the mother has a Residence Order in her favour).