The age of legal capacity in Scotland is 16. Therefore, until a child reaches this age, they must have a legally appointed representative who can exercise legal rights and responsibilities on their behalf. In Scots law, a child's mother automatically has parental rights and responsibilities. A father will also obtain these rights automatically if he is married to the child's mother or is named on the birth certificate, otherwise he can be granted the rights by a court or through written agreement with the mother. Find out more about parental rights and responsibilities here.

But what happens if you die, leaving behind children under the age of 16? According to new research, 7 out of 10 parents in the UK have not made provision for their children in the event of their death. A will can be a convenient place to set out your wishes for your children, and importantly a place to appoint guardians to look after your children on your death.

Once appointed, the guardian(s) will have the same parental rights and responsibilities as the child's parent would have had in life. This affords the guardian a wide range of powers which they can exercise on behalf of the child, including:

  • The right to have the child living with them or otherwise to regulate the child's residence;
  • To control, direct or guide the child’s upbringing, in a manner appropriate to the stage of development of the child;
  • If the child is not living with them, the right to maintain personal relations and direct contact with the child on a regular basis; and
  • To act as the child's legal representative.

Key factors to consider when appointing a guardian

For many parents the person they would wish to appoint as guardian(s) is an obvious choice, but for others it can be a difficult and sometimes overwhelming or emotive decision. That is why we have outlined some key considerations to consider when determining who would be best placed to act as a guardian for your child.

The child's relationship with the proposed guardian – particularly where children are very young, it can be useful to consider the nature of the child's relationship with the proposed guardian. How well do they know the person? Would they be comfortable living with them? Do they have a good relationship with them? The appointment of a guardian is likely to occur at a very sensitive time in a child's life, so it may be helpful to consider appointing someone with whom they are comfortable and familiar to make the transition as smooth as possible.

The age and/or physical ability of the proposed guardian - many parents will opt to appoint grandparents as guardians. In many cases, this is because the child's grandparents are the closest extended family that the child may have and generally may seem best placed financially and/or logistically to look after the child. However, the age of guardians is a factor to consider, particularly for parents whose children are very young. Appointing elderly grandparents can pose several risks, including those relating to their age, and the possibility that they may be unable, physically, or mentally, to provide the best care possible for your child. Equally, when appointing younger adults as guardians, it is important to evaluate whether they are of sufficient age and maturity to take on the level of responsibility required.

The proposed guardian's family circumstances – when appointing a guardian, it is also helpful to have regard to the guardian's own family circumstances. Do they have children of their own? Will they get on with your child? Do they have sufficient living space to cater for both their family and your child? Does the guardian feel comfortable taking on responsibility for your child? For these reasons, we would always recommend consulting the guardian you wish to appoint and confirm they are happy to take on the role so you are confident they will accept the appointment if / when the time comes.

Lifestyle/values- A guardian will have responsibility for overseeing your child's upbringing. Therefore, it is important to consider whether the person you wish to appoint shares similar views and values to you. The person you appoint will be responsible for your child's upbringing and development so it is important that you appoint someone you believe you can trust to raise your child in a manner with which you would agree.

Whilst every family's circumstances differ, appointing a combination of grandparents, siblings and close friends may provide the necessary balance and comfort you and your children need.

Appointing a guardian for your child(ren) is an important decision but can be easily taken care of when drafting your will. If you wish to seek further guidance or to discuss further, please contact Claire Scott or your usual Brodies contact.