Appointing a Guardian
A guardian is a person who has legal responsibility for children in lieu of their parents
Nobody likes to think that they might not be around to bring up their children. But however unlikely it might seem, it is important to plan for such a situation.
The sad fact is that many parents do die prematurely, either through illness or accident. If there is no provision in a Will, children can be placed in care until the court appoints official guardians to look after them.
In order to avoid this, many parents appoint a guardian. A guardian is a person who has legal responsibility for children in lieu of their parents. The most common method of appointing a guardian is through a Will – this has the added benefit that financial arrangements can be included within the same document.
The guardian’s duties
These are essentially the same as those of a parent, and will include decisions about schooling and health as well as moral and social training. There will be financial, social and emotional implications, and these should be discussed with the parents before taking on the role.
The terms of the Will should be such that the executors (and subsequently trustees) can do all that is necessary to provide financial help.
Most parents will make financial arrangements for their children in the event of their death, but you may be able to claim child benefit and receive a guardian’s allowance if both parents are deceased.
While guardians have daily responsibility for the children, it is better for the financial control to be handled by someone different, normally the trustees of the estate.
This means that trustees and guardians can share potentially difficult decisions. Some of the issues are:
How will the child’s upbringing be paid for?
Is money to be held in trust for the child beyond the age of 18?
What can the trustees spend the child’s money on before they reach 18?
Circumstances under which a guardian will be called upon
There are certain situations when both parents are NOT deceased when a guardian may be called upon.
For instance, if a surviving parent cannot perform their role because they:
are in the army
are in prison
are disabled or mentally incapacitated
Alternatively a couple could be separated and just one of the parents die.
The guardian will act with the surviving parent and any disputes will have to be settled by the court.
The surviving parent is still considered the statutory guardian.