What's a guardian?
A legal guardian is someone who has the legal authority to take care of a child should anything happen to the parents. Guardians are responsible for taking all parental decisions and can also be responsible for managing a child's property and inheritance.
Why do I need to appoint a guardian in my will?
Designating guardians in your Last will and testament ensures that your children will be taken care of if both parents pass away. It also enables you to choose and control who will look after your children. If you don't name guardians for your children in your will, the court will decide who will be given custody after your death.
How to appoint a guardian for my children?
Updating your will
Guardians are appointed through a will. As soon as a child is born, parents should create or update their Will to appoint a guardian.
You may choose to have more than one guardian, but make sure the people you choose will agree on what is best for your child. For example, one guardian can be in charge of taking care of the child and living with them, while another guardian can be appointed to manage the child’s assets.
It is also advisable to name an alternate guardian in your will, in the event that the appointed guardian is not able to fulfil their role.
Before appointing the guardian, make sure the person in question is willing to take on such a crucial role.
Choosing the right guardian
The guardian can be a member of your family but does not have to be. You should take into account parenting abilities as well as practical considerations when making your choice.
The following criteria may help you decide who to appoint as a guardian:
family structure and relationship status: it's important that your children become part of a stable and comfortable family environment. For example, if the guardian already has children, make sure they would be able to handle the responsibility of raising another child
lifestyle: consider appointing someone that shares your lifestyle, to preserve your children's habits and way of life as much as possible
health and age of the guardian: make sure your guardian has the mental and physical ability to raise a child
personality: raising somebody else's child is a very difficult task - consider appointing someone caring, patient, dedicated and trustworthy
financial stability: a stable job and income may be an important factor in your decision. location: it may be better for your children to live in a place that's not too far from where they've been raised. Distance to school, relatives and friends should also be taken into account
What are the guardian's responsibilities?
Guardians act as parents, ie it is their responsibility to raise and care for a child until they become an adult. The role includes making decisions that are in the child's best interests and managing the child’s financial assets.
The guardian's duties should be written down in your will or an informal letter and should reflect your wishes regarding your child's upbringing. It should include choices related to:
school and education
Can a guardian be called upon when both parents are not deceased?
There are certain situations when both parents are not deceased when a guardian may be called upon. For instance, if a surviving parent cannot perform their role because they:
are in the army
are in prison
are disabled or mentally incapacitated
Alternatively, a couple could be separated and just one of the parents die or there may be situations where someone remarries.
The guardian can act with the surviving parent and any disputes will have to be settled by the court. The surviving parent is still considered the statutory guardian.
If you are asked to become a guardian through a Will in Scotland, and another parent or guardian of the child is still alive, their rights are not affected. In other words, all parents and guardians (including you) must work together and agree on what is best for the child.
For further information, see the Scottish Government’s website on becoming a child’s guardian.