The first blog in the series 'Children's Guardians' asked the question 'how do I appoint a legal guardian for my children and what do they do?'. The second blog in this series discusses key considerations that should be explored when living in a modern family and looking to appoint a guardian in your will.

Multi-family households are the fastest growing type of household in the UK and in many modern families, it is common for children from the same family to have different parents. This can pose some important questions for parents when they come to appoint guardians in their will:

1) Can I appoint a guardian on my death if my child's other parent is still alive?

In short, yes. Each parent will ordinarily have parental rights and responsibilities (PRRs) in respect of their child, unless these have been removed by the court. Therefore, it is each parent's choice who they wish to exercise their PRRs on their death. In Scotland, each parent has a separate will and the guardian they have chosen can either be immediately appointed on their death or after the death of both parents. An appointed guardian will immediately acquire PRRs on the deceased parent's death without any court involvement if they accept the appointment.

In many instances, a parent may be content for the surviving parent to have sole custody of their child in the event of their death. However, there may be various reasons why a parent may wish to appoint a guardian to take on their PRRs and act alongside the surviving parent. This may include:

  • If the child's parents were separated, the guardian may be appointed to assist with raising the child in the way the deceased parent may have wanted and may be someone who can ensure the child will remain in contact with the deceased parent's family.
  • If the surviving parent is suffering from mental illness, physical ill health or requires support with childcare, it may be helpful to have a second party who can exercise PRRs and help raise the child.
  • A parent may wish to appoint a specific person for example, a step-parent, to guarantee that the guardian has an ongoing relationship with the child after their death. This may be particularly important in second families where a child resides with a stepparent and is accustomed to having them in their life.

2) What happens if the guardian and child's surviving parent do not agree on matters relating to the child?

If there are two or more people with PRRs in respect of the child, they can each exercise these independently. People with PRRs should generally consult one another and agree on significant decisions e.g., the child's living arrangements, schooling etc. In many cases, this arrangement will work well however, this largely depends upon the guardian and surviving parent being able to get along with each other and reach agreement. The paramount consideration should be the best interests of the child. In the event of any disagreement that cannot be resolved, a court order can be sought but it is worth noting that this can be time consuming, expensive and most importantly, distressing for the child. Therefore, when determining who to appoint as a guardian for your child, it is equally as important to consider the relationship between the guardians as it is to consider the relationship between the guardian and the child.

3) What if my spouse has appointed a different guardian to me in their will and we are now separated?

If you are no longer in a relationship with your child's other parent, then they may have appointed separate guardians in their will without advising you and you may not have appointed the same guardians. In this instance, the order in which the parents' deaths occur will affect who is appointed and when that appointment takes effect. For example, one parent may have only provided for a guardian to be appointed if the other parent does not survive them, or alternatively may have appointed someone to act on their death alongside the surviving parent. The wording of the guardians clause is important here.

Where possible, we would always recommend a clear dialogue between parents when appointing guardians, to result in the best outcome for the child in question.

Letter of wishes

A letter of wishes, specifically addressed to your proposed guardians, could be a useful private document to sit alongside (but separate) to your will. This allows the parent to set out their intentions for their child's future, as well as providing guidance for the appointed guardians on specific issues such as education, finances, and the child's general upbringing. A letter of wishes is not binding but it is an expression of the parent's wishes which can guide the guardian's involvement and can be valuable for all concerned.

Appointing a guardian for your children is an important decision. If you wish to seek further guidance and information when making this choice, please contact Claire Scott or your usual Brodies contact.

Contributor

Hayley Robertson

Partner