What is a Guardianship clause?
A Guardianship Clause in your Will is very important if you have children under the age of 18 years old. This clause enables you to specifically name an individual/individuals to become a Guardian/s for your children if something were to happen to you. In the first instance, any person with Parental Responsibility will look after any children under the age of 18 on your passing, however, if you are the last survivor and something happens to you, it is very important that your Will specifies who will be a Guardian to any minor children.
The Guardian must be over 18 years of age and is usually someone who you trust and who you know will Look after your Children. It is advisable that you seek permission from those who you wish to appoint to ensure that they are happy to take the appointment if need ever came.
What happens if I do not appoint a legal Guardian for my children?
If you do not appoint a Guardian in your Will and there is no one else who has Parental Responsibility for your children, then the Court will be required to make an appointment. This may not necessarily be who you would have appointed.
Expressly appointing legal Guardians for your children could reduce the anxiety and stress in an already traumatic situation.
Who has Parental Responsibility?
A Mother will always have Parental Responsibility (unless removed which is very unlikely). The Father will have parental responsibility if he was married to the Mother when the child was born, if they have legally adopted the child, if they later married the Mother or if they were named on the birth certificate. If you are uncertain, please contact our Family Department for further guidance.
The Court can appoint someone to have parental responsibility.
What happens if both parents have Parental Responsibility and they Separate or Divorce?
In the event of Separation or Divorce, it is always better to plan in advance what will happen to your Child/Children. If you both have Parental Responsibility, you are both entitled to name whomever you want as Guardians under your own Will, there may be a scenario whereby different Guardians are appointed under each Will. This means that, in the event of something happening to both parents, those appointed under the Will of the survivor of you will come into effect on their death.
There are further matters that you should consider when making an appointment of a legal Guardian:
- If you later remarry, please note that your current Will automatically revokes unless a specific “intention to marry” clause was inserted into your current Will. This means that you MUST make a new Will and either re-appoint your Guardians or appoint new Guardians.
- If your circumstances change or if you have changed your mind, you MUST create a New Will. When you pass, the last Will that you created will be the Last Will and Testament and will be the legally binding document to deal with your estate.
- When appointing a Guardian, you should always consider their age and current life situation and we will always advise that you consider having a back up appointment incase your first choice is unable or unwilling to accept the appointment you have made.