FAQs - Guardians

  • The guardian of your children who have not reached the age of 18 will usually depend on these circumstances:

    I die, but my children have a parent who has survived me: All parental rights will pass to the surviving parent.

    I die, and my children’s other parent does not survive me: This will depend on the terms of your Will. If there is a guardianship appointment clause in the will, and the appointed guardian accepts the role, then that appointment will usually take effect. If there is no guardian appointment clause in the will however, then any person may make an application to the Court to be appointed. This is problematic for two main reasons. Firstly, this can create serious conflict within families, where a grandparent and an uncle of a child both believe that they are best suited for the role. Secondly, making such an application takes time, money and may require obtaining legal advice. All of this could have been avoided by one or two clauses in the Will.

    I die, my children’s other parent does not survive me, and no person wishes to take on the role: In this case, the child will likely pass into the care of the state.

    This is why it is so important to have an idea of who you wish to care for your children, and to express those wishes in an effective Will.

  • A guardian will take on all roles that the parent had. For example, this includes decisions regarding:

    1. Daily care of the children

    2. Where the children are to live, where they go to school

    3. Health and welfare matters

    4. The guardians may also be left as Trustee of a Trust set up for the children’s benefit and may need to make financial decisions that ensure the best interests of the children

  • You can appoint a guardian, or several guardians, in the terms of your Will.

  • Yes – although a guardian will not usually be legally obliged to follow such wishes. We will provide you with a Guardian’s Questionnaire document, which will ask you questions on certain moral, philosophical or religious beliefs that you may wish the guardian’s to impart or keep in mind when raising the children. You can be as detailed or as brief as you wish. The document will then be sent to the guardian/s on your death.

  • Not in all cases, for example, a guardian will need to consent to be appointed. This is why it is essential to discuss these matters with anyone you may be considering. We also usually advise our clients to consider a substitute guardian, in case the original guardian changes their mind, dies or loses capacity.