Thursday, 8 November 2012

Obviously if you are relatively young and you have  young children the last thing you want to think of is becoming seriously ill or dying and what would happen to your children in those circumstances. However,  sadly bad things happen to good people and it is sensible to think about what would happen to your children iin these circumstances.
So what do you need to consider:-
      Well who can appoint a Guardian?  A parent or appointed Guardian can appoint a Guardian.  If your child is legitimate (or has been legitimated or is adopted), then you as their parents (or adopting parents) will each have parental responsibility  and both of you may appoint guardians for your child/children in the event of your  respective deaths.  Where a couple are married or in a permanent and stable relationship it is normally accepted that the parent who survives the death of their spouse/civil partner etc will automatically become the guardian of any children of that marriage/civil partnership etc.The situation changes however if:  

As  parents of your child you were not married to each other at the time of your child’s  birth;
Your child has not been legitimated by your later marriage or adopted, and
Your child’s father’s name is not registered on the birth certificate.

In the above circumstances only a mother will have the authority to appoint a Guardian.
A father does not have automatic parental responsibility and so will not be able to appoint a guardian of the child on his death. However, a father may acquire parental responsibility (and therefore be able to appoint a guardian) in the following ways:-

(a)  through a court order granting him parental responsibility.
           (b)  by entering into a parental responsibility agreement with the child’s mother;
           (c) by being appointed, either by the mother or by the court, to assume parental responsibility after the mother’s death

          (d) by becoming registered as the child’s father primarily on the birth certificate provided that the child was born after 1 December 2003.  If the child was born before that date, the father will not acquire parental responsibility through this method unless the birth was reregistered after that date with the father’s name then appearing.
     Once you have established whether you have a right to appoint a Guardian on behalf of your children there are matters which you will need to seriously consider when deciding who to appoint as a Guardian e.g. :-

The age of your prospective Guardian.
The health of your prospective Guardian
Does your prospective Guardian have the same beliefs, morals and attitude to child rearing as you do?
If your children are of an age that they can make a decision have you discussed with them whether they would like to live with your prospective Guardian?
Is your prospective Guardian’s lifestyle suitable  for bringing up children?
Have you discussed with your prospective Guardian whether they are willing to take on the responsibility of your children?.
What financial arrangements have you made for the continuing welfare of your children?.
Have you taken out  a life assurance policy written in trust for your children (this may be an effective way of making provision for your children)

The appointment of a Guardian must be made in writing either as part of a Will or in the format of a legal statement, and must be signed by the person appointing the Guardian.
If you wish to appoint a Guardian for your children please do not hesitate to contact us at and we will refer you to our Expert in Wills and Estate Planning.

The information herewith gives general guidance.  It should not be regarded or relied upon as a complete or authoritative statement of the law or treated as a substitute for specific legal advice concerning individual situations

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