Of all the decisions involved in making a Will, this is the one that stops people. Fees, Executors, even the division of an estate are dealt with briskly. Then the question arrives — who would raise your children if you and their other parent could not — and the appointment sits unmade for years.
The discomfort is understandable. It is also the reason a great many families have no answer recorded anywhere, which leaves the question to be settled by other people at the worst possible moment.
What a Guardian appointment actually does
A Guardian appointed in your Will takes on parental responsibility for your children under 18 if there is no surviving parent with parental responsibility. They make the decisions a parent makes: where the children live, which school they attend, medical consent, day-to-day upbringing.
The appointment usually takes effect on the death of the second parent. If one parent survives and holds parental responsibility, they will normally continue to care for the children regardless of what a Will says — a point that matters a great deal in separated families, where an appointment cannot be used to exclude a surviving parent who has parental responsibility.
Without an appointment, nobody has automatic authority. Family members must apply to the court, and the court decides according to the children’s welfare. That process takes time, it can expose disagreements between two sides of a family in the most painful circumstances, and the outcome may not be the one the parents would have chosen. Meanwhile the children are in limbo, occasionally in local authority care on a temporary basis, while the adults sort it out.
How to choose well
Most parents start with the wrong question. They ask who loves the children most, and the answer is usually grandparents. Love is not in dispute; suitability over a fifteen-year horizon is a different test.
Consider the practical shape of their life. Where do they live, and would the children change school and lose their friends? Do they have children already, and how would the arrangement work in their house? Do they have the physical energy for a five-year-old, and will they still have it when that child is fifteen?
Consider values rather than affection. Approach to education, religion, discipline, screens and money. You are not looking for a duplicate of yourself, but a fundamental mismatch will make everybody’s life harder.
Consider age realistically. Grandparents are the instinctive choice and often the wrong one for young children, simply because of the arithmetic. Many families name a sibling as first choice and grandparents as a fallback — the reverse of their instinct.
Consider stability. The appointment may need to hold for a decade or more, through the Guardian’s own job changes, relationship changes and moves.
Appoint a substitute. Circumstances change and first choices can predecease you or become unable to act. A named alternative avoids the whole issue falling back on the court.
The conversation you have to have
Nobody should learn that they are a Guardian by being told after a death. Ask them, properly, and give them room to decline. A person who is quietly unwilling but too polite to say so is worse than no appointment at all, because they can renounce the role afterwards and leave the family exactly where it started.
If you appoint a couple, think about whether you mean both of them, or one of them, and what happens if they separate. This is worth saying explicitly rather than leaving to inference.
The part almost everyone forgets: money
Appointing a Guardian answers who raises the children. It says nothing about how they are paid for, and that gap causes real difficulty.
Without planning, children inherit outright at 18. A large sum arriving at 18, unsupervised, is rarely what parents intend. Just as importantly, the Guardian may be left funding a larger house, a bigger car and years of school runs while the children’s inheritance sits inaccessible.
The usual solution is a trust within the Will. Assets pass to Trustees who can release funds for the children’s maintenance and education throughout their childhood, with capital passing at an age the parents choose — commonly 21 or 25, sometimes in stages.
It is generally wise for the Guardian and the Trustees to be different people. The Guardian asks for what the children need; the Trustees consider the request. That separation protects everybody, not least the Guardian, whose position is far more comfortable when they are not also the person controlling the money.
A letter of wishes, kept alongside the Will, is where the rest belongs. It has no legal force but it is often the most valuable document in the file: what you would want funded, your views on schooling, contact with both sides of the family, and anything you would want your children told about the decision.
Making the decision
Parents delay this because they are looking for a perfect answer, and there is not one. There is only a considered answer, written down, which is enormously better than the alternative.
An appointment made today can be changed whenever life changes. What cannot be changed is the position your children are left in if you never make one. Every family we see who has been through this without a named Guardian says the same thing afterwards: it was not the grief that made those weeks unbearable, it was the uncertainty.