17th March 2023

The importance of appointing legal guardians for children

Lara Barton

Partner

According to research carried out for the campaign 'Update Your Will Week 2023', the majority of parents are unaware of the risks of not appointing a legal guardian for their minor children.

Very few realised that the courts will decide who looks after a minor child if a legal guardian has not been appointed by their parent(s). Crucially, the courts may choose someone that the child's parents would not have chosen.

Guardians can only be appointed for a child under the age of 18 years and an appointment will only take effect on a parent's death if at that time there is no other person with parental responsibility for the child. So, in most cases, it will be relevant on the death of both parents or a surviving parent.

However, where parents were not married to each other at the time of the child's birth, the mother automatically has parental responsibility to the exclusion of the father unless he acquires it by becoming registered as the child's father or by court order or by agreement with the mother. So, in a scenario where the father has not acquired parental responsibility and the mother dies, it would be for the court to determine whether the father or someone else should look after their child.

The appointment of a guardian can be made by Will, or more informally in a signed and dated written document, although it is generally considered better to make the appointment by Will, because a Will is less likely to be lost or overlooked on death.