If a parent of minor children dies and there is no one else with parental responsibility for them, then the Courts will decide who is to be granted parental responsibility for the children left behind.
There are occasions when you can appoint a guardian even if there is a surviving parent with parental responsibility. In this case you would need to have grounds to show that the surviving parent is not capable of bringing up your child.
Parental responsibility can be a little confusing. The following may help determine whether parental responsibility applies to your situation (England and Wales only; the situation is different in Scotland and Northern Ireland):
- The mother of a child will automatically have parental responsibility under law. The father of a child will also have parental responsibility under law if he was married to the mother of the child at the time of the child’s birth.
- If the child was born after 1st December 2003, a father who was not married to the mother of the child at the time of the child’s birth will automatically have parental responsibility if his name is registered on the birth certificate.
- If the child was born before 1st December 2003, a father who was not married to the mother of the child at the time of the child’s birth will not automatically have parental responsibility, even if his name appears on the birth certificate.
- Paternal parental responsibility can be acquired in a number of other ways such as by marrying the mother and having the birth re-registered as a child of marriage, making a parental responsibility agreement with the mother, obtaining a parental responsibility order from the Court, obtaining a residence order from the Court; or becoming the child’s guardian on the mother’s death.
If one parent dies, it is usual for the surviving parent to become their guardian provided the surviving parent has, or acquires, parental responsibility.
What is a guardian?
A guardian is a person appointed to look after your child after your death. The guardianship will remain in place until your child reaches the age of eighteen.
It is best practice to seek the consent of the guardian before making the appointment. You may decide to appoint a back up guardian in the event that your chosen guardian is unable or unwilling to look after your child at the date of your death.
As the appointment of a guardian only comes into effect if there is no other person alive with parental responsibility, it is usual for both parents to appoint the same person as a guardian in the event that they both pass away.
A guardian can be anyone aged eighteen or over whom you trust. This could be a family member or a close friend. Your child may have an existing close relationship with another adult, which could make the choice a little easier.
Care should be taken when appointing more than one guardian to avoid a dispute as to which guardian your child will live with. Your instructions should always be clearly set out.
How much authority will the guardian have?
The role of a guardian is quite similar to that of a parent. Your child’s guardian will have a legal duty of care towards your child, being responsible for their personal safety, health, care, education and up-bringing.
How can I appoint a guardian?
An appointment of a guardian needs to be made in writing, and signed and dated. The best way to appoint a guardian is under the terms of a Will, where you can also ensure that your estate passes in accordance with your wishes (for example, to your children), and appoint trustees to handle any inheritance you leave to your children, particularly if you wish to apply certain conditions on when they can access money for themselves.
To sum up…
If you die without appointing a guardian, and there is no other parent with parental responsibility, the Court will decide who is appointed to look after your child, and this could be a person neither related or known to the child. There is no guarantee that you would have been happy with the Court’s decision.
By preparing a correctly worded Will or deed of appointment, you can eliminate this potentially distressing situation and be confident that you have made provision for the care and protection of your child should the unthinkable happen.
Source: Flint Bishop Solicitors.