Understanding the Duties of Guardians: What You Need to Know

Appointing a guardian for minor children is one of the most important decisions parents can make when preparing a Will. The role carries significant legal and practical responsibilities, and it is essential for both testators and prospective guardians to understand what is involved. Below, we outline the key duties of guardians, the process of appointment, and important considerations for anyone involved in this process.

1. Joint Appointment and Division of Responsibilities

It is common for more than one guardian to be appointed. Where this is the case, guardians may have already discussed and agreed upon how to share the responsibilities of child-rearing. If not, this will need to be decided collaboratively at the time the guardianship takes effect. Open communication and flexibility are crucial, as the needs of the child and the circumstances of the guardians may evolve over time.

2. Custody Rights and Parental Status

In most cases, if one parent dies, the surviving parent will assume full custody of minor children, provided the parents were married. Even in cases of divorce, the surviving parent typically retains the right to custody, unless there are exceptional circumstances or a contrary provision in the Will. However, unmarried fathers do not automatically acquire custody rights unless a parental responsibility agreement is in place. This highlights the importance of clear legal arrangements and up-to-date documentation.

3. The Role of Social Services

While parents can express their wishes regarding guardianship in a legally valid Will, the final decision rests with the local Social Services authority. Social Services will generally seek to honour the wishes set out in the Will, provided they are in the best interests of the child. This underscores the importance of professional drafting to ensure clarity and legal validity.

4. Guardians as Executors and Trustees

It is not uncommon for guardians to also be appointed as executors and trustees under the same Will. This can be advantageous, as it allows for more efficient management and advancement of funds for the benefit of the child. However, careful consideration should be given to the suitability and willingness of the individuals involved, as these roles carry distinct legal duties and potential liabilities.

5. Flexibility and Trustee Powers

Guardians require maximum flexibility regarding living arrangements and the use of funds for the child’s benefit. A professionally drafted Will should include a comprehensive selection of Trustee Powers to accommodate a wide range of circumstances. Guardians should avoid making binding commitments about future arrangements, as personal and financial circumstances may change.

Accepting (or Refusing) an Appointment

Probate Registries in England will recognise up to four executors acting jointly. In practice, executors and guardians will decide among themselves how to share the workload. Importantly, while executors and guardians cannot be removed once they have accepted their duties, they are entitled to refuse the appointment if their circumstances have changed or if they feel unable to fulfil the role. This right to refuse is an important safeguard, recognising that what was agreed in good faith at the time of writing the Will may not always be practicable in the future.

Duties of Guardians - Final Thoughts

The appointment of guardians is a critical aspect of estate planning for parents of minor children. It is essential to approach this process with careful thought, open communication, and professional legal advice. Ensuring that Wills are clearly drafted and regularly reviewed will help to provide certainty and security for children, whatever the future may hold.

For more information on drafting Wills and appointing guardians, or to discuss your specific circumstances, please contact our team.

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