Rules Surrounding Guardianship

When it comes to guardians then anyone legally of adult status is a potential possibility.  It is typically close family such as grandparents, brothers and sisters that take on the role and are keen to do so after you have departed.

When selecting guardians you could select only one primary guardian.  If only one guardian is to act at any one time this guardian will be known as the Sole Guardian.  Being the sole guardian means only they alone are responsible for the welfare of your children, all the decisions for the well being of your children will be down to them.  Alternatively you can appoint multiple guardians to care for your children.

In England & Wales when you appoint multiple guardians they will be known as “joint-guardians”.  When it comes to making decisions regarding your children’s welfare joint guardians are to make the decisions together and must each agree with the decision.  Because of the need for agreement it is customary for joint guardians to be selected when the intended guardians are either a married or unmarried couple who live together.  Both members of the couple will typically have a close relationship or bond to your children.  Appointing both of them means that should anything happen to one of them the other can continue to act as guardian to your kids.  Should you intend for your children to go to a selected couple then under English and Welsh law you are not legally required to appoint both of them as a guardians.  If you wish you can appoint only one of them to be sole guardian if you want.  Your child still gets the benefit of being with the both of them as a father and mother figure, yet should that couple split up or be at odds regarding what is best for the child then the sole guardian keeps the children or has the final say with regards to important decisions about their welfare.

In the circumstance of same sex couples when one of them dies then under English & Welsh law the surviving partner can legally apply for guardianship of the child/children of their deceased partner.

If a person who was selected as guardian within a Last Will and Testament is incapable or declines to carry out the role and there is no substitute appointed to pick up the role then the situation is the same as if no guardians were selected at all.  In England and Wales under this situation the matter of who would be taking care of the child is referred to Social Services who will aim to place the child with close relatives where possible.  Where there are not any relatives with whom they can place the child then the child will have to be placed with foster parents.  Within the Last Will and Testament or via intestacy any property and money left to the child will be collected together and passed to a Public Trustee to look after for the child.

Because different paperwork can be used to retain a guardian then even if a Last Will and Testament appoints a guardian it needs to be checked that there are not any other documents appointing a guardian which causes a conflict.  There might be another guardianship in force as an alternative to or as extra to the Last Will and Testament or codicil appointment.  In accordance with English and Welsh legislation any written document could annul an appointment of a guardian through a Last Will and Testament or codicil.  In this event the guardian designated in the Last Will and Testament or codicil could be removed yet leave the rest of the Last Will and Testament intact. Those organizing the estate need to make certain that the correct guardian is chosen.

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

In England & Wales when for any reason a Last Will and Testament gets revoked or is declared invalid then this makes any testamentary appointment of a guardianship null and void too; so make sure you carefully follow the rules for correctly writing a valid English & Welsh Last Will & Testament.

SEE ALSO:

Automatic Guardian Appointing
Selecting A Guardian
Appoint A Guardian
Selecting Trustees
Executor Selection Rules

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