Legal Will Writers of Moray

 Appointing Guardians & Parental Responsibility

Appointment of Testamentary Guardians

The appointment of guardians and the rights they have are governed by the Children Act 1989, s5. A guardian can only be appointed in accordance with that section. A parent with parental responsibility may appoint a guardian by Will or by a document which he/she dates and signs and which provides that the appointment only takes effect on his/her death.

 

The appointee will become the child´s guardian if, at the death of the testator:

A.  no parent with parental responsibility survived him; or

B.  there was a residence order in his/her sole favour relating to the child.

If neither of these conditions are fulfilled, the appointees will not automatically become the child´s guardian but, as he has parental responsibility, he will be entitled to apply to the court to be appointed guardian.

 

Where a testator has children under the age of 18, the appointment of testamentary guardians should always be considered. The expression ´testamentary guardian´ merely indicates that the guardian has been appointed by the Will.

It is usual (but not essential) that the same persons are appointed guardians of all the testators children. When the guardians are to act only after the death of the surviving parent it is desirable that each parent should appoint the same persons to act as guardian.

It is of course, important that the testator should obtain the consent of the proposed guardian before making the appointment. The appointed guardian can appoint a successor. It is, however, unnecessary to make express provision in the Will because the Children Act 1989, s5(4) enables a guardian to appoint another individual to take his/her place in the evnet of his/her death.

 

Parental Responsibility

Section 2 (1) of the Children Act 1989 provides that where a child´s mother and father were married to each other at the time of the child´s birth, they both have automatic parental responsibility for that child. (Same applies to children born as a result of AID)

If the parents aren´t married the father can apply for parental responsibility through the court and be granted an order, agreement with the mother which has to be signed and witnessed in court or via a residence order.

If the father has already acquired a parental rights and duties order under the Family reform Act 1987, this will automatically be deemed to be an order under the Children Act 1989.

In 2003 the Children Act was reformed. The parents of the child no longer had to be married to both have automatic parental responsibility for the child. Both the father and mother just have to be named on the child´s birth certificate. You can choose to legitimate the child by later getting married.

Guardians, a person with a residence order, adopters and local authoorities where a care order or emergency protection order is in force can all acquire parental responsibility.