Childcare and will planning

It is always devastating for children to be robbed prematurely of a parent or parents by an untimely death.

No matter how well the children are provided for financially there will always be a void that no amount of money can fill. There is also the important question of who will look after the children if both parents are dead.

Hence the importance for those with children to make a will setting out who will become the legal guardian.

Law reforms

The law relating to legal guardianship was clarified under the Children's Act 1989. This made it easier for guardians to be appointed and recognised that the guardian's role was simply to care for a child which would otherwise not have had a parent.

A guardian can be appointed by:

1) A parent with parental responsibility for the child

2) A person who has already been appointed as guardian

3) The Courts (if neither 1 or 2 are available)

Parental responsibility for a child is deemed to rest with both parents providing they were married to each other at or after the time of conception.

One important change brought in by the Act is to amend the timing of a guardian's appointment. The guardianship no longer comes into effect on the death of the parent making the appointment.

Instead parental responsibility now passes to the other parent, providing they have joint parental responsibility. The legal Guardianship now only comes into effect when both parents are dead.

One of the easiest ways to appoint a guardian is through a will but it can be done by deed or any other way providing it is in writing, signed, dated and witnessed by two people. The same person may appoint more than one guardian and the appointment may be made jointly or individually.

Choosing a guardian

The choice of guardian is very personal and will depend very much on the age, personality and needs of the children and of course the putative guardian.

The responsibilities of the legal guardian are much more appropriately set out by the Children Act 1989 which has encouraged the courts to recognise that the exercise of parental responsibility should be left largely to the discretion of the adults.

The courts now tend to see that responsibility as a collection of powers and duties which follow from being a parent. There is now also a recognition that parental responsibility will diminish as the child gets older and is in a position to make its own decisions.