Guardianship Clauses In A Will

• Published date: 18 May 2021
• Subject Matter: Family and Matrimonial, Wills/ Intestacy/ Estate Planning
• Law Firm: Keebles
• Author: Mr Natalie Sheldon

In the unfortunate event that both you and your partner pass away leaving children under the age of 18, you might consider incorporating a guardianship clause into your Will. This would give you peace of mind that your children have been left in the care of someone you trust.

It is common for guardians to be appointed under the terms of a will to make provision for the care and protection of your child if the worst should happen. For married couples with mirror wills, the guardianship clause only comes into effect on the death of the second parent. There are a number of factors which will determine whether the clause will come into effect, these are mainly governed by the Children Act 1989. If a court order is in place stating with whom a child should live then the guardianship clause would not override this. If there is no court order but the child has a surviving parent with parental responsibility then the clause will not come into effect. Technically, if there was an absent father with parental responsibility only he could make decisions so in these circumstances the proposed guardian would have to apply have to apply to Court for a Child Arrangements Order.

A guardian would have the legal authority to make decisions on behalf of your child with regard to their upbringing, including decisions on with whom your child will live and where they will attend school. This is known as parental responsibility.

It is important when appointing a guardian that the appointment is made in writing, dated and signed by the person making the appointment, there is no particular set wording that must be used.

Parental responsibility

A child's mother automatically has parental responsibility, as do both parents married to each other at the birth of the child. A father has parental responsibility if he is named on the birth certificate, subsequently marries the mother or if he has a parental responsibility agreement or court order.

Why appoint a guardian?

It gives you an opportunity to carefully consider who should have parental responsibility if you die. Grandparents, although typically loving towards their grandchildren, may be an...