02.08.2018

When drafting your Will it is important to consider guardianship for your child to ensure you know that the person appointed will carry on bringing them up as you had intended.  If the parents of the child have died without appointing guardians, only the Court can appoint a guardian.

 

Under the Children Act 1989 Section 5(3) the person who has parental responsibility for his or her child may appoint another individual to be the child’s guardian in the event of his or her death.

• The birth mother always has parental responsibility. However, for a child born after 1st December 2003, a father who is not married but who is named on the birth certificate will have parental responsibility.
• For a child born before 1st December 2003 to an unmarried father, even if their name does appear of the birth certificate, they would not automatically have parental responsibility. If the birth mother wants the father to look after their child after her death, she must make a Will appointing the father as Guardian.

 

The appointment of a guardian will take effect only if no other parent has parental responsibility for the child following their death.

 

In cases where the parents of a child have separated, if the parent who has parental responsibility wants to appoint someone else as guardian in their Will, the parent being excluded could raise the issue as to who the child should live with.  Depending on the age of the child, the child’s views may be considered by the family court. It is useful to put a letter of explanation with the Will as to the reason(s) for excluding the surviving parent.

 

The guardian shall take parental responsibility for the child on the death of the parent. This means that the guardian can make important decisions about the child’s life in areas such as medical treatment and education. The appointment of a guardian shall take effect upon the death of the person making the appointment and will be effective until the child reaches the age of 18 years.

 

For more information contact Sarah Bourke on 01922 639 080.

 

About the Author, Sarah Bourke.

Sarah joined Walker Solicitors in 2017
Legal Assistant in our Wills Department

T:   01922 639 080

@:  sb@walkersolicitors.com