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If you don't name a legal guardian before you die, the court will choose who will care for your children. 

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Appointing a Guardian

If you have children under the age of 18 it is vital that you name a legal guardian or guardians in the event of your and the other parent's death. Failure to do this will mean that the Courts will decide who will care for your children. This may not necessarily be who you think!  - Do not assume that custody will be granted to aunts, uncles, or even grandparents of the child.

Legally speaking, the surviving parent has the right to custody if the other dies, so if this is something you don't want, you should plan for this ahead of time as well. If you appoint a guardian for your child in your Will and you then die, the appointment will take effect only if, following your death, no other parent has parental responsibility for the child. 

Parental responsibility is not automatically given to a step-parent and as such if the biological parent died, the child could be removed from the family unit to go and live with the surviving biological parent. If you require further information on obtaining parental responsibility for a step-parent please contact us. 

If you have made a Will and chosen guardians for your children but have now changed your mind, you can make a Codicil which is straightforward and cheaper than a Will. A Codicil is an addition to the Will that modifies or revokes (cancels) a part of it.

To avoid difficulties it is highly advisable that parents discuss guardians with each other and try to coordinate who they appoint – even if they are no longer a couple.