1 December 2022

Guardianship: not just for Jane Eyre and Harry Potter.

By Miranda Marshall, Director, Hayes + Storr.

In tales through the ages a guardian is often a cruel person grudgingly having the care of a young orphan. In modern times the legal term ‘guardian’ means someone who takes over a deceased parent’s responsibilities for a child. The 21st century guardian has a valuable and responsible role in the care of a bereaved and vulnerable child.

Until 1991 parents and guardians had similar, but not identical, powers. By the Children Act 1989 those distinctions were abolished and guardians were brought within the new scheme for ‘parental responsibility’ (PR). After that, the term ‘guardian’ was restricted to non-parents with care, in legal use.

PR gives a carer the right and responsibility to make decisions for a child under age 18, including their property.

Those people who have PR are the parents of a child who are married to each other or marry after the child is born; parents who are not married to each other, but the father is named on the child’s birth certificate; parents who are not married to each other, but the father has acquired PR by way of court order or PR agreement; and, a mother, in any event.

If you have young children, it is vitally important that you consider guardianship in your Will and think about whom you trust to care for your children, should you die before you child reaches age 18.

Guardians should be people whom you trust, and who, ideally, already have a happy and close relationship with your children. They should be physically capable of caring for the children; so maybe an elderly relative is not the best guardian for very young children. Are they financially stable? Do they have children of their own and a happy home?

Making your Will appointing guardians presents the opportunity to talk to your potential guardians to make sure that they are prepared to take on the role. A guardian is not bound to accept the appointment on your death and could decide later that they don’t wish to act.

You can also express wishes about your children’s upbringing; you may have specific wishes about education or religion. Any such statement is not binding on the guardian, but it is a useful statement by the parent.

A guardian can be appointed only in accordance with the law. The person appointing the guardian must be either a parent of the child who has PR, or someone acting as guardian for the child.

A guardian has PR from the time of the death of the appointor. From that time onwards they have the same rights and responsibilities as a parent when it comes to matters such as a child’s health, welfare and education

Anyone over 18 can be a guardian; a family member, a close friend or anyone else you feel is the right person to look after your child. You can appoint more than one guardian, and sometimes it is useful to do so in case your first-choice guardian can’t or won’t act.

So, how is a guardian appointed? The appointment of a guardian may be by Will (‘a testamentary guardian’). A simple clause in a Will is good enough to appoint a guardian, if both parents die. An appointment by Will must comply with the signing requirements of the Wills Act 1837. If not made by Will, the appointment can be done informally, provided the requirements of the Children Act are met i.e., in writing, dated, and signed by the person making the appointment.

A guardian can also be appointed by the courts. If so, the Family Court application process must be followed. If the court appoints a guardian, it considers the child’s own wishes and feelings, their age and understanding, their relationship with the prospective guardian, how capable the proposed guardian is of meeting the child’s needs, any recorded wishes of a deceased parent and the wishes of the child’s nearest relatives

The Guardianship ends automatically when the child turns 18 or if the child or sole guardian dies while the child is a minor. The guardian may end their guardianship early by disclaiming their appointment but must do so promptly. A guardian may also be removed by the Court

Guardianship is an important subject which affects all areas of our society and law. It is another good reason why all muggles should have a Will.

For further information, please contact Miranda Marshall on 01263 712835 or email miranda.marshall@hayes-storr.com.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.