Appointing A Guardian

Should you have children or perhaps even an adult that may be disabled that you are naturally or legally entrusted to care for; a guardian would be the person you assign to take over your responsibility to care for them when you are no longer able to look after them yourself; whether on a temporary or permanent basis.  You entrust them to take over your role as parent, carer or guardian.

 One of the options in England and Wales for assigning a guardian is through an Appointment of Guardian Agreement.  This is a legal document whereby an existing parent and a would-be guardian agree that the responsibility for the well being of the parent’s child is to transfer from the parent to the guardian.

 Often a guardianship is appointed through a Last Will and Testament.  Upon a parent or the parents’ demise their children are totally vulnerable and at most risk of having no one to care for them.  An English & Welsh Last Will and Testament with foresight to this makes it legally possible to preselect a testamentary guardian or guardians in advance and name and appoint them on this legal document.  By having the pre-arranged guardian or guardians it can greatly ease the upheaval to the children at what would already be an extremely difficult time for them.  The guardianship would commence upon the death of the parent or parents. 

When using a Last Will and Testament in England and Wales to pass over guardianship you can within the same document allocate over possessions, property and funds either directly or indirectly through a trust to the guardian for the upkeep of your child.  However, with an English and Welsh Appointment of Guardian Agreement you can not pass over any possessions, property and funds to the guardian for the upkeep of your child, either directly or indirectly through this document.

In England & Wales when a child is under the age of 18 they require a guardian in the absence of the parents.  When a kid becomes 18 they are legally classed as an adult in England and Wales and as an adult you can not legally apply a guardianship upon them.  They may however still reside and be cared for by a relative or an earlier appointed guardian; yet, the child under English and Welsh law assumes legal responsibility for themselves and their actions.  The relative or guardian ceases to be accountable for them. 

 In the case of a child who has a mental disability which results in them not being able to take care of themselves then the guardianship would continue even past the age of eighteen.  In the case of physical disability then it is not so much a guardianship that applies but a duty of care for their well being that is legally expected.  The guardianship ceases as the child assumes adult status but still requires the care and assistance from others; however, they are of sound mind and as such they are legally free within English and Welsh law to make their own choices for their own lives.

 When an English or Welsh person dies in England or Wales and there is not an English or Welsh Last Will and Testament in place or that it was declared invalid then the rules of English and Welsh intestacy are implemented and as such for those leaving an under-age kid behind the rules for the court assignment of a guardian or guardians would become necessary.

When a guardian has not been appointed by the deceased then any family member can step in to the breach after first applying to the English or Welsh courts for guardianship and receiving acceptance of their application from the courts.

If you have neglected to appoint a guardian then you will lose out on any control you may have had as to what would happen to your under aged kid succeeding your demise.

Without a guardian selected then the selection of someone to be a guardian rests with the courts and there is a danger that they may select a person that you would not have chosen.

 You might have taken the time to consider and appoint a guardian within your Last Will and Testament; however, when the time comes that guardian’ may for whatever reasons decline to accept the responsibility or perhaps are no longer capable of undertaking the role.  When you neglect to name an alternative guardian within your own Last Will and Testament the matter of guardianship would then go over to the English or Welsh courts to sort out.

When the living father or mother both die and neither of them have made provision within their Last Will and Testament for the nomination of a guardian, then the children can become the obligation of the English or Welsh courts.  Some may need to consider also the possibility that should they die would the father or mother be able to provide and care for the child or children and if not then the appointment of a guardian would be necessary. You can’t discount or by-pass the father or mothers right to care for their kids except in specific circumstances where they have lost their legal rights to care for their own child or children.

The English & Welsh courts will commonly agree to a close family member having guardianship of a child or children unless there are any complications that render the choice as not being in the kids’ best interest for some reason.

Even after you have stipulated the guardian you want for your kid or kids within your Last Will & Testament the court can overrule your decision, although unlikely, if they believe your choice is not in the best interest of the child or children.

SEE ALSO:

Appointing An Executor.
Inheritance Tax
Rules Surrounding Guardianship
Selecting Your Guardian
Intro to Trustees
Automatic Guardianship
Appointing A Guardian
Introduction To Trusts
Parental Responsibility
Changing Guardianship
Money For Child And Guardian

 

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