Few parents enjoy thinking about what would happen to their children if they were no longer here. It is, however, one of the most important decisions a parent can make, and one of the easiest to put off. The legal steps are relatively simple, and having them in place gives you real peace of mind. Our busy family law team regularly helps families do this, and this short guide explains how it works.
What is a legal guardian?
A guardian has legal authority over the major decisions in a child’s life, including education, religion, medical treatment, and where the child lives. This is different from custody, which concerns day-to-day care. I explained this distinction in my piece on custody, access, and guardianship, which you may find useful.
A guardian is also different from an executor, who administers your estate, and from a trustee, who manages any money or property held for your child. One person can fill more than one of these roles, but each is a separate legal function, and it is worth thinking about them separately.
Why this is important
If one parent dies, the surviving parent will normally continue as guardian, provided they already hold that status. Problems arise where there is no surviving guardian. This can happen, for example, where a single parent dies, where the other parent is not a guardian, or where both parents are lost in the same accident.
If nobody has been appointed, a relative or another interested person must apply to the District Court to be appointed guardian under the Guardianship of Infants Act 1964. That means delay and uncertainty at an already painful time, and it leaves a judge, rather than you, to decide who will make the important decisions for your child. Guardianship normally continues until a child turns eighteen.
Who can appoint a guardian?
Under section 7 of the Guardianship of Infants Act 1964, as replaced by the Children and Family Relationships Act 2015, a parent who is a guardian, or another guardian who has custody of the child, can appoint a person to act as guardian after their death. This is known as a testamentary guardian. The appointment is made by will or by deed, although in practice a will is by far the most common route.
If you are unsure whether you are a guardian, for example because you are an unmarried father, it is important to check before you plan further. We can confirm your position and, if necessary, help you to obtain guardianship first. Citizens Information sets out who is a guardian automatically and who is not.
Six steps to appointing a guardian
- Choose carefully. Think about values, health, age, location, and the strength of the person’s existing relationship with your child. Consider naming a second choice in case your first is unable or unwilling to act.
- Talk to them first. Your will should never be the first time somebody hears that you have chosen them. Guardianship is a serious commitment, and they must be willing to take it on.
- Put it in a valid will. To be valid in Ireland, a will must be in writing, made by an adult of sound mind, and signed at the end in the presence of two witnesses. A gift left to a witness or to their spouse or civil partner is not valid, which is one of several reasons to have a solicitor prepare it.
- Consider a letter of wishes. This is a separate, non-binding letter setting out how you would like your child to be raised, covering schooling, faith, family contact, and anything else that matters to you. It can be updated without rewriting your will.
- Plan for money. A guardian makes decisions about your child’s upbringing but does not automatically control your estate. If your child could inherit significant assets, your will should provide for who manages them and when your child receives them.
- Review regularly. Revisit your choices after a birth, a separation, a move, a change in health, or a change in the guardian’s own circumstances. Note also that marriage will automatically revoke an earlier will, unless it was made with that event clearly in mind.
A testamentary guardian does not always act alone
This point surprises many parents. Where there is a surviving guardian, the testamentary guardian acts jointly with them. Naming someone in your will does not remove the other parent’s rights.
If either of them objects to the arrangement, or believes the other is unsuitable, they can apply to the court. The court can revoke the appointment, allow the two to act jointly, or in some cases appoint the testamentary guardian alone. In every case, the deciding principle is the best interests of the child.
This is particularly important for separated parents and blended families, where feelings can run high and the wrong drafting can create conflict at the worst possible moment. Treoir provides useful background on how guardianship works after a death.
Temporary guardianship during serious illness
Planning is not only about death. If you are seriously ill or injured and unable to care for your child, you can nominate a suitable adult over eighteen to act as a temporary guardian, using a nomination form and setting out any limits on their authority. The nominated person then applies to the District Court, which makes an order specifying their rights.
Common mistakes to avoid
- Naming a guardian without asking them.
- Assuming that a verbal wish or a note in a drawer has legal effect.
- Forgetting that the surviving guardian will usually act jointly with your choice.
- Leaving money to a minor child with no trust or plan for managing it.
- Using an online template where family arrangements are complex or disputed.
- Never revisiting the will as your family changes.
Speak to our family law team
Appointing a guardian is an act of love and foresight, and it need not be daunting. Should you require assistance with appointing a legal guardian, the team here will be glad to talk through your family circumstances, prepare the right documents, and make sure your wishes are properly protected. Arrange a time to speak with a solicitor here at McCarthy + Co Solicitors LLP by completing our quick and confidential online form.
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