Clause for thought

When parents have children, they will often (or should) think about who would best care for their children if something were to happen to them, until they reach at least 18 years old. 

Who would be best to look after their child and act as their guardian? If they have more than one child, would the proposed guardian(s) be able to look after all their children, or would it be better for their children to be looked after by different guardians? If the intended guardians already have children of their own, how will they be able to manage with the sudden arrival of additional children they are effectively inheriting? 

These practical difficulties are often the single biggest factor in causing delays to parents preparing wills. 

The appointment of guardians is governed by section 5 of the Children Act 1989 (‘the act’) and is not limited to appointments by a court or to wills. It can be by any document in writing which is properly witnessed by two witnesses present at the same time. I will, however, focus in this article on testamentary guardians, that is those appointed under a will or codicil. All given sections will relate to the act unless otherwise stated. 

Testamentary guardians can be appointed in a will by: 

1. a parent of the child who has parental responsibility (section 5(3)), or  
2. by someone who has already been appointed as a guardian for the child or by someone who has been appointed as a special guardian for the child (section 5(4)). 

A person has “parental responsibility” in the following cases: 

1. Where the child’s father and mother were married to, or civil partners of, each other at the time of the child’s birth, they shall each have parental responsibility of the child (section 2(1)). 
2. Where the child has a parent by virtue of section 42 or 43 of the Human Fertilisation and Embryology Act 2008 and is a person to whom section 1(3) of the Family Law Reform Act 1987 applies, the child’s mother and the other parent shall each have parental responsibility of the child (section 2(1A) of the Children Act 1989). 
3. Where the parents are not married to each other, but the father is named on the birth certificate then both parents will have parental responsibility (section 2(2)). 
4. If the parents were not married to each other and the father has acquired parental responsibility as a result of a court order or parental responsibility agreement, then both parents will have parental responsibility (section 2(2)(b)). 

In all other cases, only the mother has parental responsibility. 

Under section 3, “parental responsibility” means “all the rights, duties, powers, responsibilities and authority which by law a parent of the child has in relation to the child and his property”. Essentially, this means that a person with parental responsibility can do anything which a parent would be expected to do for that child.

A parent who has parental responsibility for their child may appoint another individual to be the child’s guardian in the event of their death (section 5(3)). As mentioned above, this therefore allows the person to appoint a guardian either during their lifetime, or by will. 

A guardian may only be appointed in relation to a child, however. Where a child arrangement order is in place, the appointment of a guardian will take effect immediately on the death of the person named as the person with whom the child should live (section 5(7)). Otherwise, the appointment of a guardian by one parent in a will, will not take effect if the child concerned has a parent with parental responsibility who is still alive. Instead, the appointment under the will will only take effect when the child no longer has a parent who has parental responsibility (section 5(8)). 

Two or more guardians may be appointed jointly (section 5(10)), which may result from either one parent appointing more than one guardian, or both parents appointing different guardians. If neither has appointed a guardian at all, then the court will step in to appoint someone. 

The appointment of a guardian can be revoked if the will is revoked completely, or simply if the appointment is revoked by a written and dated instrument which is signed by the testator in the presence of two witnesses (section 6(2)). 

While it is good practice for parents to check with the intended guardians that they are happy to act as guardians before appointing them in their will, there is no obligation to do so in England and Wales. 

A person who is appointed as a guardian under section 5(3) or (4) therefore has the ability to disclaim his appointment by an instrument in writing signed by him and made in a reasonable time of him first knowing that the appointment has taken effect (section 6(5)). 

Any appointment may of course be challenged by others, and typically such questions are dealt with by the family courts, which will decide whether the appointment of the testamentary guardian is in the best interest of the child concerned, and if not, who else to appoint in their place. The court has full power to replace a guardian if it believes that it is in the best interest of the child to do so. The court may determine any question with respect to the upbringing of the child, or the administration of the child’s property or the application of any income arising from it and, in doing so, the child’s welfare shall be of the court’s paramount consideration (section 1(1)).   

The guardianship ends when a child reaches 18 and becomes an adult, unless it is brought to an end sooner, for example as a result of an order by the court or the death of the first guardian and no successor having been appointed. It cannot be extended beyond the child’s 18th birthday, however. 

Often, families which have a child with special needs will want to appoint a guardian to help look after the child’s affairs beyond the age of 18, on the basis that their child will not be able to manage their finances on their own. This is best achieved with the use of trusts and trustees, as the appointment of guardians will automatically come to an end when the child reaches 18. There is nothing preventing parents nominating another adult to act in loco parentis after the child is over 18, although such an appointment would have no legal status. It may be helpful, however, if there is an application for that person to become the (now adult) child’s deputy, in terms of supporting the application itself.  

It will also be of assistance if someone else is appointed as a deputy, as a deputy must take into account – if it is practical and appropriate to do so – anyone engaged in caring for the person or interested in their welfare (section 4(7)(b) of the Mental Capacity Act 2005) when making a decision in someone’s best interests. This therefore includes anyone who has been named as a “guardian”. It may also be helpful to trustees in helping them decide how to exercise any discretionary powers they may have by giving them someone to consult who is interested in the beneficiary’s welfare. Lastly, it may also assist in making an application to be the Department for Work and Pensions appointee in relation to benefits, if no one has already been appointed and nobody else is able to make that application. 

While this may not be exactly what the parents are looking for, in terms of advice, it may be the only option available to them. 

For many parents with adult children with additional needs, it will often be appropriate to apply to the Court of Protection (CoP) for an order for them to be appointed as deputies if their child has property and financial affairs that need to be managed. Depending on the age of the parents, such an application may include their child’s siblings or other family members as additional deputies to avoid the need to make a further application once the parents are no longer able to act as deputies, either as a result of incapacity or death. 

Similar considerations will need to be made by those parents in relation to whether it is appropriate for a health and welfare deputy to be appointed by the CoP either instead of, or in addition to, a property and financial affairs deputy. These types of application are quite rare, and the costs regime usually makes the costs payable by the applicants, as opposed to being paid for out of the funds of the person to whom the application relates.