Parents are able to appoint a ‘testamentary guardian’ to act in their place in the event of their death. This guardian would act in conjunction with the remaining parent should there be one. If the surviving parent objects to this then the guardian may have to make application to the court to carry out their role.
Appointing a guardian is not necessary, and in some cases not desirable, however there are many circumstances where will makers should consider doing so. For example, if the children are in their late teens then it may not be desirable or necessary. Many separated parents are very concerned to appoint a guardian to ensure their side of the family remains in contact with the children or because they have concerns about the other parents’ ability to care for the children.
A will maker with young children should also consider the financial implications on the guardian. There are a number of ways to ensure that this is not overly burdensome including considering making the guardian and the trustee for the children the same person or at least two separate people who get on well together and can be trusted to have the children’s best interests at heart.