Thomas Hazlewood

As a parent myself, the idea of even thinking about dying before my children are even adults moves me to tears every time – without fail. It is a truly deeply unpleasant thought (said with a great deal of understatement!). It caused me to put off writing my own first Will for far too long. Whilst it felt easier to put off, what I realised was if that situation did arise, if both me and my wife died before our children reached 18, there would be nothing in place for my children.

Forget what happens to anything my wife and I own, who would look after them? Neither my wife nor I would have any say over the matter. The decision would rest entirely with the courts. Appointing a guardian is necessary.

So if you are a parent looking at appointing a guardian, what do you need to know?

Who can be a guardian?

Only individuals who are 18 and over can be appointed as a guardian. More than one guardian can be appointed and it is not uncommon for a married couple or couple in a civil partnership to be appointed together.

What does a guardian do?

A guardian is the person (or people) legally responsible for looking after your children if you die before they reach 18. Should they need to act as guardian they will have parental responsibility for any child that they become appointed guardian for. Their role covers:

• Providing day‑to‑day care
• Making decisions about education, health, and welfare
• Offering emotional stability and a safe home
• Acting in the child’s best interests at all times

What factors should be considered?

Appointing a guardian is a deeply personal and emotive decision. There is no right or wrong answer. It is your decision, as a parent, as to who would be best placed to support and raise your children in your absence. The following is a non-exhaustive list of factors that would be important to consider in reaching a decision:

1. Values – Does your proposed guardian share your core values?
2. Parenting style – Do you think your proposed guardian’s parenting style would fit well with your child’s personality.
3. Emotional connection – Is there a positive relationship between your child and your proposed guardian?
4. Practical considerations – This includes a wide range of factors:
   1. Age and health: If your proposed guardian (like your own parent) is significantly older than you or in poor health, practically, it may be difficult for them to carry out the role, however much they may wish to. If you do appoint a guardian who is significantly older than you or with health concerns, appointing a substitute to act in their place would be wise.
   1. Location: Would either the guardian or your children need to move for the appointment to work. If so, make sure that this is something that has been fully considered and thought through. For your children, if they have just lost their parent, would they cope with moving homes and/or schools?
   1. Other commitments: Does your proposed guardian have other significant commitments, for example work and/or their own family? Would it be possible for these all to be balanced?
5. Financial stability: Raising children is not cheap and so it is important to consider how it will work financially for your chosen guardian. It may be that you are able to provide the resources your children will need under your Will, but it is important to consider how it will work in practice.
6. Willingness – I always recommend discussing a potential appointment with the proposed guardian. It is a significant responsibility that you are asking them to potentially take on and so it is important to give them the space to consider it first. If they do need to step in to the role, it will likely be at an unexpected moments notice. It will be better for everyone, including your children, if their guardians are aware and prepared.
7. Backup options – It is wise to name substitute guardians in case your first choice is unable or unwilling to act when the time comes.

If you are appointing more than one guardian to act jointly together, (typically a married couple/ civil partners), it is important to consider that you are happy for both to act as guardian. If for example, one of that couple died themselves, would you be happy for the survivor of them be the guardian on their own? Would they cope with that role on their own?

What happens if no guardian is appointed?

Many parents assume that guardianship will automatically pass to a close family member. In reality, this is not the case. Without a legally appointed guardian, the decision falls to the courts. While the court will always prioritise the child’s welfare, the outcome may not reflect your wishes or your family’s expectations.

What should you do next?

If you are a parent and you have a Will in place appointing a guardian who you are still happy with then you do not need to do anything. Unsurprisingly, I do have to caveat that with: assuming you are happy with everything else in your Will.

If you are a parent and you don’t have a Will in place, or you need to update your choice of guardian, then you need to update your Will.

I understand that appointing a guardian is one of the most personal and emotionally charged decisions that we, as parents can make. It requires reflection, honesty, and sometimes difficult conversations. But it also brings immense peace of mind. If I can help you through that process please do send me a message.