I have separated from my children’s father and am updating my will to appoint guardians for them. I have serious concerns about their father’s suitability to care for them and do not believe it would be in their best interests to live with him if I were to die. As their mother, can I appoint alternative guardians, and what can I do to maximise the chances of my wishes being followed?
Sarah Williams, partner and head of children in the family department at Forsters law firm, says this is an issue she sees all too often. Many parents assume that appointing guardians in their will means that those chosen will automatically be granted care of their children if they die. However, where the other parent survives and has parental responsibility, that parent will usually continue to make decisions about the children’s upbringing.
Parental responsibility is the legal authority to make important decisions about a child’s life, including education, medical treatment and welfare. As a mother, you will automatically have it. A father usually has responsibility if he is married to or in a civil partnership with the mother, or if he is registered on the child’s birth certificate. It can also be acquired by agreement or court order.
In most cases where the surviving parent has parental responsibility, a guardian appointed by a will does not step in immediately — the appointment becomes effective only if the surviving parent dies while the children remain under 18.
An important exception applies where a child arrangements order names only the now-deceased parent — and not also the surviving parent — as the person with whom the children live. In those circumstances, the guardian can acquire parental responsibility immediately on the parent’s death, even though the other parent is still alive.
This places the guardian in a stronger position if concerns arise about the children’s future care. But even then, it does not mean the guardian will automatically take over the children’s care, nor does it guarantee the children will live with them long term. If a dispute arises, the court will determine what arrangements are in the children’s best interests, with welfare the paramount consideration. However, the guardian will have a formal role, and the deceased parent’s wishes are likely to carry greater weight.
Our next question
My wife and I are in our early seventies, and this is a second marriage for both of us. We each have children from previous relationships, and we both still have sizeable pension pots. We had assumed our pensions would eventually pass to our own children outside inheritance tax. But with the rules changing from April 2027, should we leave our pensions to each other, to our own children, or start taking money out and gifting it?
It is sensible to prepare a letter of wishes explaining why you have chosen particular guardians in your will and setting out any serious concerns you have about the surviving parent that are relevant to the children’s welfare. Where such concerns exist, specialist family law advice should be sought.
The key point is that a guardianship appointment alone may not achieve your desired outcome. Ensure your will, any letter of wishes and any child arrangements court orders are consistent. Evidence supporting your concerns should be retained and any findings from earlier family court proceedings may be particularly significant.
The opinions in this column are intended for general information purposes only and should not be used as a substitute for professional advice. The Financial Times Ltd and the authors are not responsible for any direct or indirect result arising from any reliance placed on replies, including any loss, and exclude liability to the full extent.
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