Who will care for my children if I die?

By Emma Foster - 22 Jan 2020

With the increasing number of blended and extended families, new developments in birth technologies and the general trend towards older parents, the clear appointment of guardians is of growing importance. It can be a sensitive issue and requires careful consideration.

This blog addresses some of the issues and considerations surrounding this important appointment.

What is a Guardian?

Under the Care of Children Act 2004, generally, the mother and father of a child (or children) are jointly guardians. The exception to this rule is if the mother and father were not in a relationship at conception of the child, nor living together when the child was born, and the father is not named on the birth certificate. In this situation, the mother will be the sole guardian of the child and the father would either need the mother's consent to be added to the birth certificate, or if this was not forthcoming, to apply to the court to be appointed a guardian.

The role of "guardian" is a separate matter to whether or not you have day-to-day care (or custody) of the children. Guardians must confer and agree on major decisions about the child's life, including but not limited to:

• the child's name (and any changes to it)
• where and how the child is to be educated
• where the child lives (including decisions arising from travel by the child)
• the child's religious denomination
• medical treatment the child should receive.

In the usual course of things, a child's parents make these decisions on a day to day basis without considering where their authority to do so comes from. However, this can become more complicated in the event that the child's parents are separated or were never in a relationship, if joint guardians are unable to agree on issues arising from their guardianship, or if one or both of the child's parents dies.

What is a Testamentary Guardian?

Parents can appoint a person (or persons) in their Wills to take over the position of guardian for their children in the event that they die. These people are known as testamentary guardians.

A testamentary guardian does not have the automatic right to day-to-day care of the child (i.e. custody). It is possible to express your wishes as to who you would like to have day-to-day care, but ultimately this is a matter that would require application to the Court to establish.

Who is usually appointed as Testamentary Guardian?

This is obviously a very personal decision. At the end of the day it is who you feel will be the best person or people to make decisions about how your children should be brought up. In practice, it is often a family member or close family friend who is appointed.

Careful consideration needs to be given to the age and circumstances of the proposed guardians. Are grandparents appropriate? Would an older sibling cope with the role? Can the proposed guardian accommodate more children within their family, in the event that they were to have day-to-day care of the children as well as guardianship? Ultimately, does the proposed person have the skills to cope with a child who has lost one or both of their parents?

Both the father and the mother of a child (provided they are each guardians at the time) may appoint a person or persons to be the guardian of the child following his or her death.

Normally the appointment takes effect only if both parents should die. However, it is possible to appoint a guardian to act jointly with a surviving parent during that parent's lifetime. This can be particularly relevant for separated or divorced couples. By appointing a guardian to act in conjunction with the surviving parent, you are able to ensure that your family will have an ongoing involvement with your child or children's upbringing in the event of your death.

Discuss it with the Proposed Guardian

It is important if you are going to appoint a testamentary guardian that the matter should be discussed with them to make sure they are comfortable with the appointment. It is, after all, quite a responsibility and imposes significant obligations on the guardian.

It is also important to review the appointment from time to time to ensure that it remains appropriate. Circumstances may change, e.g. the proposed guardian could move overseas, develop health issues or have onerous childcare obligations of their own that would make their appointment as testamentary guardian inappropriate.

Are the Testamentary Guardians financially responsible for my children following my death?

Testamentary guardians are not financially responsible for your children. You (or your estate) remain financially responsible for the well‑being of your children. Your children cannot inherit from your estate until they are at least 20 years of age. Up until then, the trustees of your estate can make funds available to your children's testamentary guardians or to whoever has day-to-day care of the children for matters like schooling, maintenance and general well‑being.

It may be wise to consider whether it is viable for the children to reside with the proposed guardian or whether it is possible for the family home to be retained to accommodate the children. It may also be worth considering whether separate financial provision should be made to the guardian given that the role can often involve a degree of financial investment (as well as emotional investment) that may not otherwise be recoverable.

What if there are disagreements between Guardians?

If joint guardians are unable to agree on issues, an application may be made to the Family Court for directions. The Court can then make an order that is appropriate and will ultimately be guided by what is in the best interests and welfare of the child.

The Family Court can, in some circumstances, make orders removing one or both guardians from their roles. This power is rarely exercised against parental guardians. It is generally limited to cases where the guardians or one of them have demonstrated that they are unable or unwilling to exercise their guardianship duties and powers in the best interests of the child or children. An example would be where a parental guardian has been abusive to the child or children and shown no willingness or ability to change that behaviour. The Court will have by that point removed the child from that parent's care, but if it does not consider that leaving that parent in the role of guardian will ever be in the child's best interests and welfare, it can strip the parent of their guardianship rights too.

The Family Court can also remove testamentary guardians and has shown more willingness to do so. An order to remove a testamentary guardian is generally made when the testamentary guardian and the parental guardian have significant discord, which in turn has an adverse effect on the child or children. The High Court (in considering a case on appeal) agreed to remove a testamentary guardian and leave the parental guardian in place in circumstances where the two guardians had a "pathological inability to agree on almost anything" and a "fundamental clash of values and culture which was likely to continue indefinitely."

Given the Court's willingness to favour a parental guardian in the face of disagreement with a testamentary guardian, you have to consider whether the proposed testamentary guardian will be able to function with any surviving parental guardian.  This can be a difficult consideration for separated parents, and careful consideration will need to be given in this scenario as to whether your proposed testamentary guardian will be able to work with your ex-partner in the best interests of the child or children.

Contact Emma Foster or any member of our specialist trusts and estates team for assistance on including an appointment of a testamentary guardian in your Will.