If you die intestate without making a will leaving children under 18 the State will decide who will look after your children. To prevent this from happening and to allow you to make decisions in the best interests of your children you should make a will which includes provisions whereby a guardian is appointed.

A guardian is someone appointed by you to act in your place as a parent and so is given both the responsibility of caring for and the powers to make decisions about your children under 18 (ie parental responsibility). Guardians are frequently appointed on the understanding that they will personally look after the children in the event of the parents’ death and the appointment will only be effective if both parents (or all persons with parental responsibility) are no longer alive. Since a guardian takes the place of a parent, you should choose someone who can offer the best care for your children, such as a close relative with whom the children are familiar and who is willing to accept the responsibility.

Nevertheless, this is not a requirement of being a guardian, as the guardian’s task is to make the decisions about where the child lives, with whom, what school they go to and so on. If the proposed guardian lives some distance away you will need to consider the likely disruption to the children’s lives by eg change of school and loss of local friends and amenities – all this at a time when the children are in a distressed state following the loss of their parent(s). Always check with your proposed guardian in advance to be certain that he or she is willing to act.

The guardian is often, but need not necessarily be, the same person as the executor or trustee. Their responsibilities are different: an executor or trustee deals with and has responsibility for the financial arrangements, whereas the guardian makes decisions about the wellbeing of the children. If the guardian is not the same as the executor, he or she should be able to cooperate with the executor or trustee.
There might be complications if

  • you were not married to the other parent when the child was born
  • you and the other parent have already been or become (after the making of the will) divorced from each other
  • a court order already exists or is made in the future relating to where the child is to live or to parental responsibility for the child.