Some thoughts on the appointment of guardians for minor children

If both parents of a child have died without appointing guardians, only the court can appoint. An informal agreement between friends and family is not sufficient.

In a previous article, my colleague Sophia Smout and I gave some tips on how to have a difficult conversation and we gave the appointment of guardians for minor children as an example of a topic which might be prickly.

Parents of minor children will be concerned about who would look after the children in the event that there is no surviving parent. In England & Wales, minor children are children who are under the age of 18. Once a child reaches 18, the role of guardian comes to an end since at that point they are legally an adult.

Guardians of minor children can be appointed in a Will but can also be appointed in a separate written document. The appointment takes effect on death where there is no surviving parent with parental responsibility.

There could be difficulties if each parent appoints different guardians: on death of the surviving parent, the appointed guardians would all need to agree on matters relating to the children’s education and upbringing.

If there is disagreement on important issues, they would have to refer to the court and that could be expensive. It is therefore a good idea for parents to coordinate guardian appointments and difficulties can be avoided if they appoint the same people.

It is possible to specify conditions that potential guardians must satisfy to be appointed and provide for someone else/other people to be guardians if the conditions are not satisfied. For example, appointing the children’s grandparents but only if they are under a certain age. If they are not alive, or are over a certain age, or disclaim the appointment then substitute guardians would be appointed.

Parents may be concerned at burdening elderly grandparents with responsibility if they appoint them to be the guardians of young children. Would it be possible for parents to appoint other guardians to take over if, for example, grandparents reach a certain age?

Unfortunately, it is not possible to appoint successor guardians. Instead, it would be necessary to apply to the court for another guardian to be appointed, if, for example, grandparents have reached a certain age.

However, a guardian whose appointment has taken effect can appoint their own successor guardian. Parents can make their wishes about who they would want to succeed in a non-binding letter of wishes.

Thinking about who to appoint as guardians for minor children might be difficult, and there will be various points to consider, such as those mentioned above; however, it is nevertheless a topic worth giving some thought. If both parents of a child have died without appointing guardians, only the court can appoint. An informal agreement between friends and family is not sufficient.

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