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Guardian Appointment
Many parents assume that if they were to die then their immediate family will automatically look after any surviving orphaned minor children of the deceased. But this is a myth.
The decision as to who looks after an orphaned child (i.e. is granted guardianship of the child) is made by CAFCASS in conjunction with the Law Courts. Their decision will take into consideration a range of factors – as they have a duty of care to the orphaned child.
Where the parents of the orphaned child made a Will appointing a Guardian then CAFCASS’s decision is made considerably easier; the nominated Guardian will be appointed unless there is some specific reason as to why they should not be.
Where a child is orphaned and their parents have failed to nominate a Guardian there is a considerable risk that the person appointed by CAFCASS will not be the person that you (as a parent) would have preferred.
Also, where no Guardian appointment has been made by the parent, there is a risk that the minor child may be placed into Local Authority care in the short term. In rare cases the child can also be placed into care in the longer term. Most parents would not want this to happen to their child – and the simple solution is to make a Will appointing a Guardian.
You should ideally appoint a Guardian and a reserve Guardian, in case your first choice is unable or unwilling to act. The appointment could be conditional. (e.g Subject to the Guardian living in a specific property.)
Choosing a Guardian is often a difficult choice for the parents of a minor child. The father may well want to appoint a member of his family, while the mother may feel that a member of her family is more appropriate. Other factors have to be taken into consideration though, such as where the guardians live, their financial resources, could they cope with the child when the child is approaching adolescence.
Your Will needs to include administrative powers that allow your executors/trustees to release monies to the Guardian.
If you are bringing up a minor child on your own, and your child’s other parent is still alive but you do not wish them to bring up your child in the event of your death, then you should seek the services of a professional will writer. This is because the surviving parent will be CAFCASS’s first choice of Guardian, even though the surviving parent may well have had very little input into the child’s welfare and upbringing in the past.
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5 Reasons to Appoint a Guardian
For the parents of a young child the inclusion in their Will of a guardian appointment is more important than the distribution of their estate.
We explain why.
A Will will not be invalidated by not having a date on it.
However, the witnesses will have to verify the date; that is not easy if the witnesses have died!
