What Is Parental Responsibility (PR)?
This means all the rights, duties, powers, responsibilities, and authority which, by law, a parent of a child has in relation to the child and his property. For example:
Providing a home
Having contact and living with them
Protecting and maintaining them
Disciplining them
Choosing and providing for their education
Agreeing to medical treatment
Appointing a Guardian(s)
Who Can Appoint a Guardian?
Only the following can appoint a Guardian:
A parent or step-parent with PR for a child.
A Guardian
A Special Guardian (an adult who is not the parent but has been court-appointed to care long term for a child).
The Court
Who Can Be a Guardian?
Only individuals can be Guardians. However, a couple could be appointed jointly, for example.
When Will the Appointment Take Effect?
An appointment of a Guardian will not take effect until the person who made it (the appointor) dies, but only if either of the following applies:
After the appointor’s death, no parent has PR for the child
Immediately before the appointor’s death:
A CAO (Child Arrangement Order) was in force in which the appointor was named as a person with whom the child was to live (unless the order was also made in favour of a surviving parent of the child); or
The appointor was the child’s only (or last surviving) Special Guardian.
If the only reason that an appointment does not take effect on the appointor’s death is that there was a surviving parent with PR, the appointment will take effect when the child no longer has a surviving parent with PR.
This can be a problem because, if a husband and wife both make Wills appointing Guardians for their child, and the husband dies while the child is under 18, the appointment under the husband’s Will does not take effect on his death. It only takes effect if they wife also dies before the child reaches 18. The appointment under the wife’s will also takes effect on her death.
What about Unmarried Parents?
As above, fathers do not automatically gain PR for their child unless they were married or become married to the child’s mother. As a result, unless the unmarried father gains PR through other means, they will not automatically gain PR on the death of the child’s mother. Additionally, if the child’s mother appoints a Guardian other than the child’s father in her will, that Guardian will be appointed immediately, and they will not be obligated to consult the father at all.
What about Divorced or Step-Parents?
For divorced parents, both parents will retain PR through the divorce, so both parents will be able to appoint guardians in their Wills. A step-parent can obtain PR through marrying a parent of the child who has PR and either entering a PR agreement with the parent(s) who has PR or obtaining a court order giving them PR. PR obtained by a step-parent in this way will not automatically come to an end, even on subsequent divorce, but it can be brought to an end by court order.
A step-parent could also gain PR via an appointment as a Guardian in a parent’s Will when that parent dies, but that appointment will only be effective if the child has no surviving parent.
If a step-parent is appointed as a Guardian in a Will but they later divorce from the appointor, that appointment will not take effect unless it is clear that the appointor intended the appointment to survive the divorce.
Conditional or Substitute Guardians
It is possible to subject the appointment of a Guardian to certain conditions, which must be satisfied in order for the Guardian to be appointed, and to provide that another individual will be the Guardian if the conditions are not satisfied.
As an example, a parent could appoint a relative as long as that relative is below a certain age and, if they are above a certain age, a different relative will be appointed instead.
It is also possible to appoint a Substitute Guardian in case the first choice of Guardian dies before the surviving parent, loses mental capacity, or disclaims the appointment.
It is not possible, however, to appoint Successor Guardians. Any clause in a Will which purports to appoint Successor Guardians will not be valid, and ultimately the choice will be with the initially appointed Guardian (G1) as to who they wish to appoint (G2). The parent could agree with G1 who G2 will be, or they could express their wish in a Letter of Wishes, but neither of these will be binding on G1.
What Will Happen If a Parent Dies without Appointing a Guardian?
Additionally, although a person may have care of a child, if they do not have PR, they only have a limited legal right to do what is reasonable in all the circumstances to safeguard or promote the child’s welfare.
Things to Note Regarding Guardianship Clauses
Couples should, where possible, appoint the same Guardian(s). However, as the appointment of the first parent to die will not take effect while they are survived by the second parent, the second parent could amend their Will to appoint a different Guardian. Two different Guardians may then be appointed on the death of the second parent, and those Guardians would then have to try to agree on matters relating to the child’s upbringing and education. To avoid this, the Guardianship clause should clarify that only the appointment in the Will of the second parent to die should take effect.
Clients should also be advised that a Guardian has the opportunity to disclaim an appointment, which must be made in writing, signed by the Guardian, and within a reasonable time of first knowing that the appointment has taken effect. Accordingly, clients should be satisfied that their appointees are willing and able to act as Guardians, and they should be advised to consider making conditional or substitute appointments to mitigate any risk.
“The above might sound complex, but appointing a Guardian in your Will is fairly straightforward. The important thing is to ensure that the clause is structured by your solicitor in the right way to reflect your set of personal circumstances and wishes.”
Contact our team of experienced probate solicitors and we can guide you through the process and how a clause would work to protect your children’s interests in your drafted Will.
