Guardianship clauses in wills 

Update Your Will week 2023 is from 23 to 29 January, and is hosted by Solicitors For the Elderly. If you don’t have a will to update, then this is also your reminder to get one in place! Having an update to date will in place will ensure that your wishes are carried out and will also help to prevent any disputes or distress for loved ones. Many people may ask, “When should I make a will?” and we say, “The sooner the better.”

Solicitors For the Elderly’s research tells us that ‘70% of UK Parents have no legal guardian in place to care for their children in the event of their deaths’. A well drafted will can include guardianship provisions to give you peace of mind, and security and clarity for your children and family if such tragic circumstances arose. It is admittedly a difficult thing to think about, and hopefully a very remote possibility, but it is important to give due consideration and make sure that valid appointments are made to prevent any problems in the future. 

To assist in thinking about this difficult decision, please see some information and tips below. 

  • Successfully appointing guardians for your children within your will gives those guardians parental responsibility – meaning that the Guardian has the power, duty and authority to make decisions such as medical, education and care decisions – and so careful consideration needs to be given to who is appointed. Without a valid appointment for Guardianship, only the court can appoint Guardians. The guardianship will end when the child turns 18, even for children who may have a disability.
  • In most cases, an appointment can only take effect if following the appointer’s death, there is no-one left with parental responsibility. In blended family situations, careful drafting is therefore needed to ensure the appointment is valid, and advice may be required to give clarity over your particular situation.  
  • It is not strictly necessary to appoint Guardians within a will, but there are benefits to doing so. There are certain requirements for a valid appointment that can be easily achieved by including this within your will, and a will is less likely to be lost or mislaid due to its inherent importance. Creating a will is clearly a time when one takes stock and thinks about what you would want to happen on death, and so is a sensible time to think about and discuss Guardianship with loved ones, as well as take the appropriate advice. 
  • Care should be taken to coordinate parents’ appointments in each of their wills. We typically advise parents to appoint the same Guardian, and for this to be drafted in such a way that the appointment in the will of the second parent to die will be the only one to take effect. This prevents issues where two valid appointments take effect on second death, with potentially multiple guardians.  
  • It is possible to appoint more than one guardian, for example, a couple. However, care should be taken as this can lead to issues if the Guardians disagree on decisions relating to the child’s upbringing and education, and the court may need to get involved. There could also be issues if the jointly-appointed guardians have divorced or separated since the time of the appointment. 
  • We find that clients are typically concerned about how the appointed Guardian will manage financially, with the extra responsibility of raising a child or children. In a situation where, on the death of both parents, the estate is left to children, this will be held on trust for the children whilst they are minors. The trustees of this trust will have the ability to apply the estate funds for the benefit of the children, including to pay to the guardian funds to be used for the children’s benefit. The will can also expressly authorise this. 

Of course, there are more considerations, and some situations require more complicated drafting and considerations to give parents peace of mind.

How Moore Barlow can help

We take time to understand your requirements, enabling us to offer you bespoke advice. With a team of specialists in tax, wealth management and estate planning our wide-ranging expertise enables us to provide you with practical solutions tailored to your and your family’s needs.

Please contact the Moore Barlow wills, trusts and estates team for assistance and we would be happy to help.