Yes, you can.
Section 7 of the Guardianship of Infants Act provides that both the father and mother of a child younger than 21 may appoint any person in their wills to be the guardian of the infant after their death.
However, it has to be noted that ONLY the parents can appoint prospective guardians of their children in their wills. Grandparents, siblings, and relatives CANNOT do so.
For parents who wish for specific persons to look after their children in the unfortunate event of their passing, it is a good idea to consider drafting a will to provide for this. If no guardian is provided for in the will, and something untoward happens to both parents, the court will appoint a person it thinks fit to be the guardian of the children in accordance with Section 6 of the Guardian of Infants Act.
You should think about the person(s) you want to look after your children very carefully. Essentially, the new guardians will become the foster parents of your children, and the powers of testamentary guardians are very wide indeed.
Relevant Provisions in the Guardianship of Infants Act
Rights of surviving parent as to guardianship
6. —(1) On the death of the father of an infant, the mother, if surviving, shall, subject to the provisions of this Act, be guardian of the infant, either alone or jointly with any guardian appointed by the father. When no guardian has been appointed by the father or if the guardian or guardians appointed by the father is or are dead or refuses or refuse to act, the court may if it thinks fit appoint a guardian to act jointly with the mother.
(2) On the death of the mother of an infant, the father, if surviving, shall, subject to the provisions of this Act, be guardian of the infant, either alone or jointly with any guardian appointed by the mother. When no guardian has been appointed by the mother or if the guardian or guardians appointed by the mother is or are dead or refuses or refuse to act, the court may if it thinks fit appoint a guardian to act jointly with the father.
(3) Where an infant has no parent, no guardian of the person and no other person having parental rights with respect to him, the court, on the application of any person, may, if it thinks fit, appoint the applicant to be the guardian of the infant.
Power of father and mother to appoint testamentary guardians
7. —(1) The father of an infant may by deed or will appoint any person to be guardian of the infant after his death.
(2) The mother of an infant may by deed or will appoint any person to be guardian of the infant after her death.
(3) Any guardian so appointed shall act jointly with the mother or father, as the case may be, of the infant so long as the mother or father remains alive, unless the mother or father objects to his so acting.
(4) If the mother or father so objects, or if the guardian so appointed as aforesaid considers that the mother or father is unfit to have the custody of the infant, the guardian may apply to the court, and the court may either refuse to make any order (in which case the mother or father shall remain sole guardian) or make an order that the guardian so appointed shall act jointly with the mother or father, or that he shall be sole guardian of the infant, and in the later case may make such order regarding the custody of the infant and the right of access thereto of the mother or father as, having regard to the welfare of the infant, the court may think fit, and may further order that the mother or father shall pay to the guardian towards the maintenance of the infant such weekly or other periodical sum as, having regard to the means of the mother or father, the court may consider reasonable.
(5) Where guardians are appointed by both parents, the guardians so appointed shall after the death of the surviving parent act jointly.
(6) If a guardian has been appointed by the court to act jointly with a surviving parent, he shall continue to act as guardian after the death of the surviving parent; but if the surviving parent has appointed a guardian, the guardian appointed by the court shall act jointly with the guardian appointed by the surviving parent.
Dispute between joint guardians
8. Where two or more persons act as joint guardians of an infant and they are unable to agree on any question affecting the welfare of the infant, any of them may apply to the court for its direction, and the court may make such order regarding the matters in difference as it may think proper including power –
(a) to make such orders regarding the custody of the infant and the right of access thereto of the mother or father as, having regard to the welfare of the infant, the court may think fit;
(b) to order the mother or father to pay towards the maintenance or education of the infant such weekly or other periodical sum as, having regard to the means of the mother or father, the court may consider reasonable; and
(c) to vary or discharge any order previously made under this section.
If you'd like to hire us to draft a will, get in touch with us here.
The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information and content available on this website are for general informational purposes only. Information on this website may not constitute the most up-to-date legal or other information.
