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Guardianship - A Crucial Appointment in your Will

Tuesday, 17 November 2009

The court can appoint guardians under the Children's Act 1989 if you die leaving young children surviving and without a surviving parent. It is sensible to consider who should be appointed in the knowledge that a spouse or partner does not survive the first spouse to die.

The appointment can be made by two or more persons acting jointly. The appointment may, but need not be, contained in a Will or deed. If the appointment is not within a Will then it must be in writing, dated and signed by the person making the appointment in the presence of two witnesses. These formalities make the inclusion of a guardian appointment within a Will more common.

Any intended guardian must be made aware of the appointment and be willing and able to act. The will should also make provision for the maintenance of children. The easiest way is by means of a trust fund. There is no objection for the guardian to be appointed a Trustee of the trust fund. The trust should contain powers for the expenditure of both income and capital for the maintenance, education and advancement, or other benefit, of the child.

It is fundamental that the choice of guardian/s be a party with whom you have implicit faith and trust - their responsibility towards your children is significant.

Whilst a Will may contain the formal appointment of guardians, it is sensible to provide a side letter setting out your expressed wishes (as parents) as to how the guardians may apply their discretion in relation to the (trust) powers of expenditure over capital and income. Although such wishes cannot be binding upon the guardians, the clearer your expressed wishes, the easier task for the guardians to then apply such discretion. A letter of wishes can be amended, at any time, as changing family circumstances may dictate. It is more onerous, usually, for individuals to make a new Will!

For further assistance please contact, Head of our Private Client Department on 020 7611 4848 or by e-mail at nacheson-gray@rollingsons.co.uk to arrange a consultation.