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You may have informal arrangements as to who will look after your children if anything happens to you. Without naming a guardian in your Will it's open to doubt and Social Services could intervene to deny your wishes. In some circumstances, decisions on hospital treatment can also be delayed if there is no Will.
Appointment of Testamentary Guardians
The appointment of guardians and the rights they have are governed by the Children Act 1989, s5. A guardian can only be appointed in accordance with that section. A parent with parental responsibility may appoint a guardian by Will or by a document which he dates and signs and which provides that the appointment only takes effect on his/her death.
The appointee will become the child’s guardian if, at the death of the testator/testatrix:
¨ no parent with parental responsibility survived him/her; or ¨ There was a residence order in his sole favour relating to the child.
If neither of these conditions is fulfilled, the appointee will not automatically become the child's guardian but, as he/she has parental responsibility, he/she will be entitled to apply to the court to be appointed guardian.
Where a testator/testatrix has children under the age of 18, the appointment of testamentary guardians should always be considered. The expression ‘testamentary guardian’ merely indicates that the guardian has been appointed by Will.
It is usual (but not essential) that the same persons are appointed guardians of all the testators’/testatrix's’ minor children. When the guardians are to act only after the death of the surviving parent it is desirable that each parent should appoint the same persons to act as guardian.
It is, of course, important that the testator/testatrix should obtain the consent of the proposed guardian before making the appointment.
Parental Responsibility
Without prompting, clients rarely contemplate the appointment of testamentary guardians but invariably accept that such an appointment is highly desirable if both are to die while they have a child under eighteen.
Section 2(1) of the Children Act 1989 provides that where a child's mother and father were married to each other at the time of the child's birth, they shall each have parental responsibility for the child.
Mothers automatically have parental responsibility. Where the parents are not married, the unmarried father has parental responsibility if:
¨ His name is registered on the birth certificate -this is the case for births after 1 December 2003. Fathers can re-Register if their names have not been placed on the birth certificate before this date. ¨ He later marries the mother ¨ Both parents have signed an authorised parental responsibility agreement ¨ He obtains a parental responsibility order from the court ¨ He becomes the child's guardian
Others, such as grandparents and Stepparents, do not have parental responsibility. They can acquire it by:
¨ Being appointed as guardian to care for a child if their parent dies. ¨ Obtain a residence order from the court for a child to live with them. ¨ Adopting the child
A subsequent adoption order concerning that child will however cause the parents to lose parental responsibility by court order.
The guardians appointed in your Will only act if both parents die. In a divorce case where the mother/father lives away and the mother/father dies, again any guardians appointed by the mother/father will not automatically be entitled to act if the birth mother/father is still alive. Grand parents do not have by right, nor would they be granted automatic parental responsibility. They could, however if circumstances dictated, be awarded a residence order. Better still, they could be appointed to act in your Will.
An adoption order concerning any child will cause the parents to lose parental responsibility by court order. Generally it would be advisable to appoint in your Will a Husband and Wife team who would obviously be more capable of acting as Guardians than separate individuals who live in different locations.
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