The role of guardians
If at the time of making your Will you have children under the age of 18 then you need to consider who should become their guardians, if you were to die whilst they were still minors. Usually the appointment of guardian(s) takes effect upon the death of the second parent.
The role of a guardian is very similar to that of a natural parent. They are responsible for the day to day upbringing of your child/children as if they were their own.
Guardians may also be appointed as executors and trustees in the same Will. This is useful for the purpose of enabling them to carry out their duties as they would be able to authorise the use of any monies that you have left to the children for their benefit, until they are old enough to inherit.
It is important that you tell the proposed guardian(s) of your intention to appoint them to ensure that they are willing and able to take on the responsibility of looking after your children, should this become necessary.
Duties of guardians
1. You may be appointed to act jointly with other 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.
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