The Appointment of Testementary Guardians

The appointment of Guardians and the rights they have are governed by the Children Act 1989, s5.  A Guardian can only be appointed in accordance with that section.

A parent with parental responsibility may appoint a Guardian by Will or by a document which is dated and signed and which provides that the appointment only takes effect on his or her death.

The appointee will become the child’s Guardian if, at the death of the Testator:

A. No parent with parental responsibility survived him; or

B. There was a residence order in his sole favour relating to the child.

If neither of these conditions is fulfilled, the appointee will not automatically become the child's Guardian but, as he has parental responsibility, he will be entitled to apply to the court to be appointed Guardian. The appointed Guardian can appoint a successor. It is, however, unnecessary to make express provision in the Will because the Children Act 1989, s5(4) enables a Guardian to appoint another individual to take his place in the event of his death.

Whether Guardians should be Trustees depends on the circumstances of each case. There are arguments for and against. The Guardians are best placed to know the needs of the children and have the task of providing for those needs. On the other hand, the Guardians may be regarded as the advocates of the children and the Trustees as the judges of their conflicting claims. The problem is particularly acute when the residue is held on Discretionary Trusts for the children and, in that case, a sensible solution may be to appoint one of the Guardians and, say two Professional Trustees.

Parental Responsibility

Without prompting, clients rarely contemplate the appointment of Testamentary Guardians but invariably accept that such an appointment is highly desirable if both are to die while they have a child under eighteen.

Section 2(1) of the Children Act 1989 provides that where a child's mother and father were married to each other at the time of the child's birth, they shall each have parental responsibility for the child. This applies also to children born as a result of AID.

Where the child’s parents were not married to each other at the time of the child’s birth, only the mother has parental responsibility (s2.(2)) but the father may acquire it either by a Court order or agreement with the mother under s4, or a residence order under s8:s12(1). If the father had already acquired a parental rights and duties order under s4(1) Family Reform Act 1987, this will automatically be deemed to be an order under s4 of Children Act 1989 (sched 14, para 4).

Parental responsibility may also be acquired by a Guardian, a person with a residence order, adopters and local authorities where a care order or emergency protection order is in force. Section 5, Children Act 1989 provides that a Court may appoint a Guardian if the child has no parent with parental responsibility or a parent or Guardian with a residence order has died during the subsistence of the order. A parent with parental responsibility or a Guardian may appoint another (or others (s5(10)) to act as Guardian in the event of their death. Such appointment must be in writing, dated and signed by the maker or, where not so signed, signed at his direction and duly witnessed: s5(5). The section goes on to provide for the circumstances in which the appointment of the Guardian may be revoked or disclaimed.

PLEASE NOTE: 

1. More than one person may have parental responsibility for the same child at the same time.

2. Where more than one person has parental responsibility for a child, each person may act independently without the other(s) in discharging that liability. This power is subject to any statute requiring the consent of more than person in any matter affecting the child.

3. The fact that a person has parental responsibility for a child does not entitle him to act in a way incompatible with any order made in respect of the child under the 1989 Act.

4. Though a person who has parental responsibility may not surrender or transfer any part of it to another, he may arrange for some or all of it to be met by one or more persons acting on his behalf. A person acting on his behalf may already have parental responsibility for the child. An arrangement will not affect any liability the person making it may have as a result of failing to meet any of his parental responsibilities for the child concerned.

Appointment

Under s.5 Children Act 1989 a person with parental authority may appoint one or more persons to be Guardians to take effect on his death. The requirements for the appointment are that it must be:

• In writing
• Dated and signed by the parent (or in the case of an appointment by will which is not signed by the Testator, it is signed at the direction of the Testator in accordance with the requirements of s.9 Wills Act 1837).