What is a guardian?

The appointment of testamentary Guardians for children allows you to decide who should be responsible for your children’s welfare, maintenance and education, and how these should be funded if both your deaths occur while any child is under 18 years of age. There is no legal reason why you cannot appoint the same people as executors, Trustees and Guardians if you wish, but you should be aware that there is a potential conflict of interest in that the trustees are responsible for advancing sums of money held in trust to the Guardians to help with guardianship duties. However, if you have absolute trust in the people appointed then do not allow this to concern you.

Do consider factors such as the age of your Guardians, where they live in relation to you, (would children have to move school etc.), how close is the relationship between your Guardians and children now, and do your Guardians know and share your views on how your children should be raised and educated etc.?

Duties of Guardians

1. You may be appointed to act jointly with guardians. If called upon, you may already have agreed which part of the child rearing role you will undertake – or you may need to decide this at the time with the other appointed guardians.

2. The surviving parent usually assumes full custody of minor children if the parents were married. Even if the parents were divorced the surviving parent is normally entitled to resume full custody of minor children; however this right will not necessarily be exercised – divorced testators may still choose to name friends or relations as the first choice for guardians. Unmarried fathers do not assume automatic custody rights unless a parental responsibility agreement is in place.

3. The ultimate decision on who will act as guardians to minor children rests with the local social services. Naturally, they will try to abide by the wishes expressed in a legally valid Will whenever possible.

4. Guardians may also be appointed as executors and trustees in the same Will. It is useful if at least one guardian is also appointed to be an executor and trustee so that funds can be advanced most conveniently when required.

5. Guardians require the maximum flexibility for living arrangements and the use of funds. All normal requirements can be catered for with a comprehensive selection of Trustee Powers which should be included in a professionally drafted Will. Whatever is informally agreed with the parents at the time of the appointment, guardians should not commit themselves to specific arrangements which they may not be able to fulfil in the future.