Legal guardianship is an especially important issue because it deals with the welfare of children who are legally determined to be unable to make serious decisions for themselves. For this reason, children’s parents are normally responsible for caring for them and making crucial decisions while they remain minors under the law. Difficulties can arise when parents are no longer in the picture or when they are not capable themselves of making the decisions involved with raising a child. When this happens, the authority over a child may be transferred to another person with whom the child lives, giving that person legal guardianship over the child. A legal guardian has the legal authority and custody a biological parent would have and can raise the child without interference from others.
Why appoint Guardians?
If you fail to appoint guardians in your Will and your children are orphaned before they reach 18, the courts will appoint guardians instead, but they won’t necessarily choose the people that you would have preferred to take care of your children. If when you pass away the other parent of your children survives, the surviving parent will normally continue to have full responsibility for the children. However, if neither parent survives (as in some road accidents) then the guardians you have appointed will take on the responsibility for your children. By appointing guardians you can ensure that your children are looked after by the people that you have chosen as the best people for the job.
How to Appoint Guardians
To appoint legal guardians for your children, you must name them as your chosen guardians in your Will. Before doing this you will need to approach the people you would like to appoint as guardians to find out whether they are willing and able to take on this responsibility. You may also wish to appoint alternative guardians, who will take their place if your intended guardians pass away.
Roles and Responsibilities of Guardians
The roles and responsibilities of guardians include: Day-to-day care of the surviving children. Making decisions about the children’s upbringing, education, health and welfare.
Usually a guardian will also be one of the Trustees for the property held in trust for the child/children.
Changing your guardians
In some circumstances it may become necessary to change your appointed guardians, for example: One of your intended guardians dies Your intended guardians have separated or divorced. Your intended guardians have left the country or had some other major life change Your intended guardians are no longer able or willing to take on the responsibility.
You can change your appointed guardians in one of two ways: By writing a codicil By appointing in your Will alternative guardians who would take on the responsibility for your children if your intended guardians die before you do.
Legal guardianship is only an issue for minors under the age of eighteen. Once a child turns eighteen, the law determines that the child is now an adult who is capable of making their own decisions. Anyone who is over eighteen can become a legal guardian, and this is how older siblings sometimes become the legal guardians of younger brothers and sisters when parents die or are otherwise incapacitated as primary care givers.
Typically, it is preferred that legal guardians be relatives or family friends and these people are expected to provide for the child in every way that a loving parent would. It is possible to live with a relative instead of the biological parents, but without the distinction of legal guardianship it is very hard for a relative to meet a child’s needs. For example, things as minor as permission slips for school field trips or as major as medical insurance cover generally require the distinction and authority of a legal guardian. If a child only needs the guardianship of someone other than his or her parents for a short period of time, permanently transferring legal parental authority is not necessary. A Caregiver’s Authorisation Affidavit can be used to provide a temporary arrangement for meeting a child’s needs when a parent is not available.
Should I make the guardians trustees as well?
Many people choose to do this, as the guardians will be taking care of your children’s finances until they are 18. If you do this, it is also advisable to appoint another trustee who is not related to the guardians, e.g. a solicitor or accountant. This will help to provide objectivity and guard against conflicts of interest. It will also provide the guardians with some support in handling the financial and legal aspects of a trust.