Guardians – Thinking of the Children Left Behind


Earlier this month the 13th anniversary of the dreaded 9/11 attacks in America passed by with little fanfare. People from all across the world were affected by the tragedy, with almost 3000 people killed in the attack. Those who lost their lives would have been a mother, father, aunty, uncle, sister, grandparent or other close relative.

Families are still struggling to pick up the pieces 13 years on.

Why Appoint a Guardian?

When someone passes away, a lot of emphasis is placed on managing the financial affairs that need to be dealt with, but little time is spent thinking about the people left behind. Children especially are left without parents or guardians to care for them when their main network of carers lose their lives. This could happen one by one, or in a mass tragedy such as that of the 9/11 terror attacks, but even a single car accident can wipe out families.

Appoint a guardian for your child

Considering who will care for your child, and putting some kind of provision in place should this happen when you have young children, is good forward thinking for any family. If you haven't specified a guardian to care for your child if you pass away before they are 18, the courts may have some difficulty in determining who is best to care for them. Making a choice in your Will can give them some indication as to who you would like to take on this role.

Before you can appoint a guardian, you must have parental responsibility. If you are the child's mother, you automatically have that right. If you are the child's father, you have parental responsibility in any of these circumstances, only one of the following need apply:
  • Your name is on the child's birth certificate and they were born after December 2003
  • You were married to the mother when she gave birth
  • You have a parental responsibility agreement with the mother
  • You have a parental responsibility Order from a court
  • You have a residence order

What Do Guardians Do?

A guardian will be responsible for the day-to-day care of your child, including decisions related to their upbringing, education and welfare. You can also make a guardian the trustee for any property you leave behind for your child. Any trust property held for a child will require 2 trustees. When making a will you should consider appointing another trustee who is not related to the guardian (such as a solicitor) to provide objectivity in the event of any conflicts of interest.

When appointing a guardian for your child in the situation where both parents pass away, you must first ensure that the person you have in mind has agreed to the arrangement. In addition, if both parents die and the guardian finds they are not in a position to act as guardian after you have named them, they may refuse the position. It is common therefore to consider an alternative guardian to assist in these circumstances.


There are a few matters to consider when making a Will and appointing a guardian for your child or children:
  • Make sure you have parental responsibility, without it you cannot appoint a guardian
  • Think carefully about who you would like to be a guardian – essentially they will be your child's parent until they turn 18
  • In the event that the person you chose cannot be a guardian at the time of your passing, consider appointing an alternative guardian

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