Children’s Guardians

A Guardian is a person appointed by a parent with parental responsibility to care for their child if they are unable to do so themselves.

They can be appointed by parents either by way of a Deed of Appointment or in a Will. They may also be appointed by the Court. As an appointment by the Court may well not be in accordance with the wishes of the parent it is important that parents (especially unmarried mothers) appoint guardians during their lifetime and do not just leave to fate who should care for their children if they are not able to do so. An appointment will not take effect unless it is made in writing, is dated and is signed by the person making the appointment; or, in the case of an appointment made by a will which is not signed by the testator, is signed at the direction of the testator in accordance with the requirements of the Wills Act 1837 s 9

A parent must have parental responsibility before being able to appoint a Guardian. If a father does not have parental responsibility he will not have the right to look after his children after the mother’s death and if the mother wishes him to do so she must appoint him as a Guardian either by Deed or in her will.

Once appointed, a Guardian will have full parental responsibility just as if he or she were the parent. The appointment of a Guardian does not take effect until the death or after the parent with care or with a residence order become incapable of caring for their children themselves.

The wishes of the parent are only allowed to prevail if they are not displaced by other considerations relating to the welfare of the child.

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