Your Will – Guardians

For parents with young children, guardianship is an important matter to consider should anything happen to them.    An unexpected death brings with it a tornado of emotions and requires difficult decisions to be taken, particularly where there are younger children to be cared for.  By including a short expression of your wishes in your Will, this could significantly alleviate some of the stress often experienced by families following a death.

In the context of making a Will, it is a straightforward to appoint a guardian(s).   However, things can be a little more complicated depending on the nature of your legal relationship with the child/ren.    You are only entitled to appoint a guardian if you act as the child’s “legal representative”.  This essentially means those with parental responsibilities and rights for the child/ren.

The mother automatically has parental responsibilities and rights (unless these have been removed by court order).  The father also has these if:-

1. he was married to the mother at the time of conception or at a later date;
2. he was registered as the father on the birth certificate after 4 May 2006 (the registration date and not the birth date is key);
3. a Section 4 Agreement has been entered into with the child’s mother and registered (Children (Scotland) Act 1995);
4. he has acquired parental responsibilities and rights by court order.

For civil partners, a partner does not have automatic parental rights over their partner’s child/ren.  If a child is conceived by donor insemination (including donor insemination by private arrangement) or fertility treatment, on or after 6 April 2009, a civil partner can be the second legal parent and have automatic parental rights and responsibilities.

For partners living together and not in a civil partnership, a same sex partner has no automatic rights and responsibilities in this regard.  If you are the mother, you automatically have these as noted above, and similarly, if you are the father, points 1 to 4 above apply.     A same sex partner can be the second legal parent if a child is conceived by donor insemination or fertility treatment on or after 6 April 2009 in a UK licensed clinic and the relevant consent forms are signed.

For the avoidance of doubt, partners who have adopted together and are recognised as the child/ren’s parents have parental rights and responsibilities.

Returning to the appointment in the Will, this is not absolutely binding and it is for the appointed guardian(s) to accept office.  When considering who you would wish to appoint, it is important to consider who is actually able or will be able to provide a home and guidance for your child/ren. As a matter of courtesy, it is encouraged that you speak with the individual(s) you wish to appoint and should they decline, you should not appoint them in your Will.

In the event of a dispute arising following a catastrophe killing both parents between the appointed guardian(s) (under a Will) and the child/ren’s grandparents for parental rights and responsibilities, the court will make a decision based on the best interests of the child/ren.  In such circumstances, it is possible that the wishes of the parents will not be given effect to if the court feels that these would not be in the best interests of the child/ren.

By addressing the matter of guardianship when preparing your Will allows for an open and honest discussion with your partner, possibly your children and family, as well as the prospective guardian(s).  Most importantly, it provides peace of mind for you knowing that your children would be looked after and cared for by those chosen and trusted by you.

Lindsay A Watson

Maclay Murray and Spens LLP

September 2012