7 out of 10 parents in the UK have no legal guardian in place to care for their children in the event of their deaths

What does this mean?

In the event of your death, if you have not made arrangements for your affairs to be managed, or appointed suitable adults to take care of your children, your family may face complications. It would be your closest relative who would de facto have the right to apply to deal with the administration of your estate (usually a parent or sibling not the person of your choice), and a court may have to decide who looks after your children.

How do I appoint a guardian?

The only way to ensure that the people of your choice can make decisions after your death and look after your children, is to make a Will. In the Will, you would appoint executors and trustees to manage your financial affairs and guardians to take care of your children after your death. Both elements are equally as important, as someone will be needed to manage your money and assets on an ongoing basis until your children become adults, as well as the day to day care for your child. Sometimes this can be the same person but not always. You may feel different friends/relatives have different skill sets that would be suited to the various roles.

What role would a guardian have?

A guardian is specifically appointed in your Will to look after your children. This would include providing a home for them and making decisions about their upbringing and education. Your children’s money would be ring-fenced for them until they become adults. However, the guardians would usually need to be able to access funds to pay for your child’s maintenance and education. The trustees appointed under your Will would make the decisions as to how money could be advanced to the guardian and for what purpose. It can be practical to appoint the same person as one of your trustees and as guardian to make the arrangement as seamless as possible. As explained above the role of guardian and trustee often overlaps.

Who can be appointed as a guardian?

Any adult that you trust can be appointed as a guardian. However, the appointment would only come into effect if both parents with parental responsibility had died. You would ideally therefore need to agree with the other parent who the appointed guardian should be so that your Wills match and no disputes arise after your deaths. It is also important to discuss your choice with the named guardian to ensure that they would be able and willing to take on the role. It is much easier if the person is aware of the wishes present in your Will and has agreed to step in should you need them to.

How many people can be appointed as a guardian in my Will?

You can appoint the people of your choice but it is usually sensible to limit this to one or two trusted adults. This is mainly for practical reasons and to avoid disputes such as with which guardian should the children live. Perhaps also think about naming a replacement guardian in the event that your first choice is unavailable for whatever reason. This must be carefully thought through and a lot of people seek guidance from a legal advisor.

How do I communicate my wishes to the guardians?

It is a good idea to discuss your wishes with the named guardians but this is not always possible or practical. It is therefore usually sensible to prepare a note to accompany your Will called a letter of wishes. This document sets out your thoughts and preferences about how you would want your children raised and looked after. It is less formal than a Will and can be updated at any time without the need to change your Will.

How often should I review these arrangements?

Circumstances change! People move away, have career developments, or discover health issues which can mean that they may no longer be suitable guardians. Should life bring any unexpected changes, you should always update your Will. However, as a general rule, a Will should be reviewed every 5 years. If a named guardian in a Will is no longer a suitable choice, you would need to review and update your Will.