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How do I appoint guardians in my Will?

Posted on July 15, 2017 by Browne & Murphy Solicitors

It is important if you are the parent of a child that you make a Will appointing guardians to act on your behalf. We recommend that you would discuss this with the proposed guardians. It is important to know while in general people choose family members it is not a requirement. The choice is a decision that you make and which of course can be changed at any stage as the circumstance of your children and the guardians change. This is done by making a new Will or making a codicil to your Will (see: Changing Your Will).

If you do not appoint guardians under your Will, the court will appoint guardians on your behalf and the appointed guardian may not have been who you would have chosen. Death is difficult for people to deal with and by making a Will setting out clearly what you want makes matters much easier and clearer. This is particularly important in the case of  minor children (under 18). In such cases it is desirable that you create a trust in your Will so that your appointed guardians and trustees can manage the trust until such time as your minor children come of age. The role of the Trustee is very different to that of an executor. It is possible that the people you name as executor can also be your trustees, but this is a decision for you to make. You should provide as much detail as possible about your assets to your solicitor so your solicitor can advise you fully on matters.

Appointment of Guardians

Where a parent dies leaving the other parent surviving ,that parent is considered the legal guardian of the child in the majority of cases. In the case of martial children the mother and father of an infant are guardians of the infant jointly, even in the case of divorce the guardianship rights are not effected. The situation is very different in relation to a non-martial child. The natural mother is automatically deemed to be guardian but the same rule does not apply to the natural father.

The natural father of the child can apply to be guardian in the following ways:

  1. Apply to court to be appointed guardian.
  2. By marrying the natural mother, the father will become guardian.
  3. By way of statutory declaration. It is important that the father is named on the birth certificate.
  4. Legislation provides that on the death of the natural mother of the guardian the father may be appointed guardian.

If you have minor children who are under the age of 18, you should appoint guardians to look after your children. This is important as the situation can arise where a parent dies and the other parent has predeceased or where both parents die in a common circumstance.

Who you appoint as your guardians today may not always be suitable tomorrow. Therefore you should keep your Will updated regularly, as the circumstance of your appointed guardians’ may change. For example, they may move to another country, their marriage situation could change and the circumstances of your children will change (i.e. one of your children may no longer be a minor and you may which to appoint them as one of the guardians of your infant children). Your appointed guardians, acting in your place are also entitled to parental leave. Which recently (on the 8th March 2013) under the European Union (Parental Leave) Regulations 2013 iparental leave was increased from 14 weeks to 18 weeks.

if you wish to discuss the appointment of guardians or trustees or would like advice on any matter, please contact us to arrange a convenient appointment.


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