Surviving Parent or Guardian?

Can You Appoint a Guardian in a Will if There Is a Surviving Parent or Guardian?

Planning for the future involves making difficult decisions, especially regarding the care of children if a parent passes away. A critical part of estate planning is naming a guardian for minor children in a will. However, what happens if there is a surviving parent or guardian? Can you still appoint a guardian in such a situation? This article examines the legal and practical considerations surrounding these important questions.

What is a Testamentary Guardian?

A testamentary guardian is someone designated to care for and make decisions on behalf of a minor child if a parent dies. This guardian gains parental responsibility for the child. In wills, parents often specify a guardian to ensure their children are cared for according to their wishes. This includes decisions about education, healthcare, and general welfare.

Who can appoint a Guardian in a Will?

The following individuals can appoint a testamentary guardian:

1. A parent with parental responsibility;
2. A guardian;
3. A special guardian.

If there is a surviving parent with parental responsibility, a special guardian, or a court order, the guardian named in the will does not automatically assume custody. Here’s why:

Surviving Parent’s Rights: The law prioritises the rights of the surviving parent. If they are capable and willing to care for the child, they are usually granted custody, regardless of any guardianship appointments made in the deceased parent’s will.

Court’s Role: If the testator was named as the person who the child should live with by way of court order, parental responsibility will take effect for the testamentary guardian appointed.

Mutual Agreement: In some situations, the surviving parent and the appointed guardian may agree that the guardian should take on a role in the child’s upbringing. This can be formalised through a legal arrangement, but it requires the surviving parent’s consent.

Special Guardian: If the testator was the child’s only or last surviving special guardian, then the appointment of the testamentary guardian will be valid. This remains true even if there is a living parent who still holds parental responsibility. However, if there is another special guardian who is still alive, the appointment of the testamentary guardian will not be effective.

Considerations

While the appointment of a guardian in a will may not override the surviving parent’s rights, it can still be influential in several scenarios:

Contingency Planning: Naming a guardian in a will acts as a contingency plan. It ensures there is a clear preference for who should take care of the children if the surviving parent becomes unable or unwilling to do so in the future.

Guidance for the Court: In the unfortunate event that both parents pass away simultaneously or shortly after one another, the court may look to the will for guidance. The named guardian will typically be given consideration.

Temporary Care: The appointed guardian may also be involved in the child’s care during transitional periods or emergencies, particularly if the surviving parent is temporarily unable to fulfil their duties due to illness, absence, or other reasons.

Practical Steps for Parents

Discuss with the Surviving Parent: Communication between parents is crucial. Both parents should ideally agree on the guardian and include this in their respective wills. This alignment can provide clarity and prevent potential conflicts.

Consult a Solicitor: Legal advice is essential in navigating guardianship and estate planning. A solicitor can help ensure that the will is properly drafted and that all legal requirements are met.

Review Regularly: Family circumstances change over time. Regularly reviewing and updating the will ensures that the guardianship appointment remains relevant and reflective of the parents’ current wishes.

Conclusion

Appointing a guardian in a will is a vital step in safeguarding a child’s future. While the presence of a surviving parent with parental responsibility generally means that the guardian named in the will does not assume immediate custody, this appointment still plays a significant role in contingency planning and provides valuable guidance to the court and the surviving family members.

Clear communication and legal advice are key to ensuring that the best interests of the child are always prioritised. Our life planning specialists are here to help you draft a will tailored to your family’s needs. Contact us today to start planning for your family’s future with confidence.

Written by: Amarpreet Aujla