Many parents wrongly assume that when they appoint a godparent for their child, then that godparent will be able to step in to take care of their children if they were to die. They live with this false assurance that all will be well in the event of their unfortunate demise. However, this is not the case and parents must be aware of the legal difference between a godparent and a Guardian.
The role of a godparent is purely moral and religious and it has been a custom for many decades for parents to name a godparent for their child as part of their religious culture or otherwise. However, naming this godparent does not create any legal relationship between the godparent and the child and so if the child’s parents were both to die, then the godparent would not automatically become the child’s Guardian and all sorts of legal issues may follow including court battles between relevant parties (eg other family members).
A Guardian’s role on the other hand is a legal role and so if both of the child’s parents were to die during the child’s minority (aged 18 or under), then the Guardian would have those legal rights and obligations as intended by the late parents in respect of that child.
Parents may wish to appoint the same person as both godparent and Guardian and there is nothing wrong with this but if parents wish for that chosen person to care for their child in the event of their death, then it is important to formally appoint that person legally as a Guardian.
The appointment can be made within the parents’ Will although it is also possible to draw a separate formal document. The preference however nowadays is to include the appointment within a Will. It is extremely important to take advice prior to legally appointing a Guardian to ensure that both the parent and the intended legal Guardian understand how the appointment will work as it will be tailored to the circumstances of each case.
Indeed, who has parental responsibility for the children, whether the parents are married, unmarried or divorced and whether there is a step parent are all factors that will need to be taken into consideration and so it is crucial that parents take independent legal advice before appointing a Guardian.
It is possible to include conditions upon the appointment of a Guardian and also to appoint a substitute Guardian if the originally intended Guardian pre-deceases the parents. It is also extremely important that the document is appropriately executed to ensure that it is legally binding.
If parents do not legally appoint a Guardian and there are no other family members able to care for the child following their death, then the Court may appoint someone else instead and this may not always be the person that the late parents would have intended/wished to care for the child originally.
Also, parents must be aware that appointing a Guardian is only expressing one’s wish and if, following the death of both parents, other family members intervene and wish to care for the child themselves, then there may be a legal battle as the priority of the Court will always be what is in the best interests of the child. Professional expert advice will need to be taken from a specialist childcare solicitor to advise further at that stage, should the situation arise.
In summary, if you have young children and you would like the peace of mind of knowing what arrangements will be in place in the event of your untimely demise, you need to check your Will to ensure that you have included an appropriate guardianship provision. If you have not made a Will or do not have suitable provision in your existing Will, you should seek suitable advice as soon as possible. Do remain aware that appointing a Guardian is purely expressing a wish and that depending on the circumstances of the case post appointment and most importantly post death, Children Act proceedings may arise subsequently in the event of a dispute.
Please do not hesitate to contact one of our experts if you need additional advice and guidance in this regard.
CAPTION: Sophia Mellor, Associate Solicitor in the Family Department