It is not commonly known that in Scotland a clause can be inserted into a Will appointing a guardian to children who may be under 16 at the time of the parent’s death. 

Here are the important points to note:

• The guardian becomes a substitute for a deceased parent.
• The guardian acquires parental rights and responsibilities that take effect as soon as the parent dies.
• The guardian must be 16 years or older.
• More than one guardian may be appointed.
• The appointment is effective only on death.
• The appointment is effective only when the guardian accepts it.
• No application to the Court is needed.
• The guardian’s position is different to an adoptive parent – there are no lifelong ties and in particular the child has no right of succession to the guardian’s estate.
• The appointment of a guardian can be cancelled either in writing or if the document that creates the appointment is destroyed.

In cases of separated parents the appointment of a guardian often results in there being two individuals who have parental rights and responsibilities to a child i.e. the surviving parent, and the guardian.  Each of them can exercise their parental rights without the consent of the other.  If there is a dispute, the Court would require to regulate the position, and the child’s welfare is the paramount consideration. 

It can be reassuring for a parent to know that they can set out their wishes in a Will, and that the appointment of a guardian will have legal effect.  The guardian will be a substitute parent until the child reaches the age of 16. From age 16 to 18 the guardian has a restricted role of providing the child with guidance. 

If you would like further information about guardianship please contact Lynne Collingham, accredited specialist in child and family law, by email to lyc@tcyoung.co.uk or by phone 0141 225 2576.