Parental Responsibility & Guardians are an important element to consider when drafting your Will, it is critical to consider how to protect those closest to you to ensure they are looked after according to your wishes.
What does Parental Responsibility cover?
Parental Responsibility is defined in the Children Act 1989 as “all the rights, duties, powers, responsibilities and authorities which by law a parent of a child has in relation to the child and his property” – this means having the legal rights and responsibilities of a parent. These include making decisions about the child’s education and medical treatment as well as providing them with a home and caring for them.
By law, a mother automatically has parental responsibility for her children from birth. A father will also automatically have parental responsibility for a child if he was married to the mother of the child when the child was born or at a later date.
If a child is born after 1st December 2003, a father who is not married but who is named on the birth certificate will have parental responsibility.
If a child is born before 1st December 2003 to an unmarried father, they would not automatically gain parental responsibility, even if their name does appear of the birth certificate. They would have to acquire this by either marrying the mother, getting a parental responsibility order or residence order from the court or getting a parental responsibility agreement with the mother.
If a child is born to same sex parents they would both have parental responsibility if they were civil partners at the time of treatment. If they were not civil partners then the second parent can gain parental responsibility by applying for parental responsibility if a parental agreement was made or by becoming a civil parent of the other parent and making a parental responsibility agreement or jointly registering the birth.
The role of a legal Guardian
The role of a legal Guardian involves the responsibility of the upbringing and day to day care of a child until they have attained 18 years of age – their duties towards a child is the same as a parents. A Guardian’s role and responsibility for a child will take into effect when there is no one else with parental responsibility for the child.
A Guardian can request funds from the Executors from an Estate to pay reasonable costs connected with the health, education and welfare of any of your child(ren) until they are 18 years of age. However it is not advisable to make your Guardians and Trustees the same people as there could be an abuse of powers.
If a dispute did arise regarding appointment of Guardians or Parental Responsibility it would be up to the court to decide who the child’s guardians would be. Similarly, if a person were to die without appointing a Guardian and there is no one with Parental Responsibility it would again be a decision the court would make.
Appointing a Guardian
To ensure that your child(ren) are looked after should they be left without any persons of Parental Responsibility, a legal Guardian should be appointed to ensure your child(ren) are looked after by those you trust to raise them according to your wishes.
It is a vital and important decision for those with Parental Responsibility to consider who they include as legal Guardians in their Will – it should be fully thought through and discussed with the potential Guardians. Appointment of guardians is best made under a Will, which would make sure your Estate is distributed and your loved ones are cared for in accordance with your wishes.
Alongside appointing a Guardian, it is advisable to appoint a reserve Guardian in the event that your chosen Guardian in unable or unwilling to act. We advise that you make your wishes regarding the upbringing of your child(ren) clear in your Will to avoid any unnecessary confusion and ambiguity when it is read. It is also worth noting that any Guardians specified in your Will can also be amended in the future if you did wish to change them.
If the worst were to happen and a child(ren) is left with no surviving parents, having a legal document such as a Will, with your chosen Guardian’s specified, can ensure that your wishes are heard, rather than leaving it down to a court to decide who is best to raise your child(ren). You can, if you wish, leave a letter to be stored with your Will explaining the reasons for the appointment that you have made. This letter would not be legally binding but may be useful if a dispute did arise.