Why chosing a Godparent is not the same as appointing a Guardian

When a new child comes into your life, whether through childbirth or adoption, making a Will is not likely to be a priority .

But there is one very important reason why it should be.

Over half UK parents have not appointed a Guardian for their children should they die

Who would you entrust to look after your precious baby if you couldn’t?

While it’s unlikely both parents would die before a child reached the age of 18, you should give serious thought to who you would want to care for them in those circumstances.

If the worst happened and you haven’t appointed Guardians in your Wills – or you don’t have a will – it is the court which would have to decide who would care for them.

It’s not enough to simply agree informally with friends and relatives who will look after their child if they die. This does not give anyone the sufficient legal rights – called Parental Responsibility PR – to do it.

The last thing anyone would want is to go through lengthy and costly court proceedings during a time of incredible grief, for strangers to decides who is best placed to care for your children.

You might think that by asking a loved one to be your child’s Godparent is the same as appointing a legal guardia,n but this is not the case.

A Godparent is a role which encourages a child to grow in a faith and Godparent’s commit to helping your child understand how to live with life in a Christian way. There is no legal responsibility.

And you may not necessarily choose the same person. If a Guardian has to take up the role, difficulties can still occur such as:

• Providing for changes in the circumstances of an Guardian after they have taken on the role e.g. if they get divorced or become ill or want to move to a different area
• i.e. if ex-spouses both die, there is agreement on what happens next.
• A guardian has parental responsibility which means that the guardian can make important decisions about your child’s life in areas such as medical treatment and education. Anyone who does not have PR, but who has care of a child, has only a limited legal right to do what is reasonable in all the circumstances to safeguard or promote your child’s welfare.

Who can be a Guardian?

A guardian must be over 18 years of age. You can appoint alternative Guardians in your Will in case your first chosen Guardian dies before you or is unable or unwilling to act as Guardian. Parents often choose to appoint a married couple as joint Guardians.

When appointment takes effect

An appointment of a Guardian takes effect on the death of the person who made it (appointor) only if there is no surviving parent with parental responsibility for the child.

Coordinating parental appointments

As a result of the rules just described, if spouses both make Wills appointing Guardians for their child and Spouse One dies while the child is under 18, the appointment under the Will of Spouse One does not take effect on their death: it takes effect only if Spouse Two also dies before the child reaches 18. The appointment under Spouse Two’s Will also takes effect on their death.To avoid difficulties:

• The parents should appoint the same Guardian or Guardians.
• It is understood only the Guardian named in the Will of the second parent to die should take effect.

Financial burden on Guardians

Parents appointing Guardians often ask how they  will cope with the financial burden of bringing up your children.
A Guardian does not have an obligation to support your child from their own resources

This issue can be resolved in the following ways:

• Following the deaths of both parents, the residuary estate of the second to die is normally held on Trust for the children. Before the children become entitled to capital, the Executors, as Trustees, can allow some of this money to be used to cover expenses such as school fees, or to be paid directly to the Guardian for the child’s benefit.
• Parents who can afford to do so may choose to leave to the Guardians a legacy. This may be simply an expression of gratitude or it could be used to cover their newly expanded responsibilities. For example, enable them  to improve their home to accommodate your children.
• The parents may include in their Wills a power for the Trustees to make loans to the Guardians, for example, to buy a bigger house, and could be secured by a charge on the house, ensuring that money comes back into the children’s fund.
• The parents can write a Letter of Wishes making clear how they would like the Trustees to use their powers under the Will to provide financial support for their children. This would be a separate letter from any Letter of Wishes addressed to the Guardians themselves but the two should obviously be consistent with each other.

This is obviously an incredibly sensitive topic and one most new parents would not want to be discussing.
However, just as you’ll install a stairgate and ensure the car seat is properly fastened in the backseat, you’ll want to make sure your children are looked after properly if the worst did happen.

To discuss how to go about appointing an official Guardian contact Sarah McCarthy at Vincents Solicitors on 01253 77 33 77 or email SarahMcCarthy@vslaw.co.uk