Guardianship and will drafting

20 May 2020


1 Introduction

Guardianship refers to the general responsibilities of rearing, looking after and educating a child.  A guardian has the right to make decisions regarding the upbringing of a child, to include his/her religious and academic education, cultural and sporting influences, looking after their health and other aspects similar to that of a parent.

The Guardianship of Infants Act 1964 (which has been substantially amended by the Children and Family Relationships Act 2015 and the Marriage Act 2015) sets out the law in the area.   Number references in this note are sections references in the 1964 Act.

The 1964 Act provides that the guardians of a child shall be the child of a married father and mother or where a married couple of the same sex adopt a child.  One will also be the guardian of a child where the child has been adopted into the family (s 2 – definition of “father”). This would include a married couple that adopt a child, but also a step-parent who adopts child. 

Children’s welfare will be paramount for most clients

You are the guardian of the child until the child dies, attains 18 or marries (s. 8A)

The following are the rights of a guardian (subject to the orders of the court otherwise) namely, a guardian is entitled (s. 10):-

  • to custody of the child;
  • entitled to bring proceedings for any injury or trespass against the child;
  • to possession and control of all the child’s property (real and personal);
  • to receive all rents and profits on behalf of the child and for the benefit of the child until the child attains the age of 21 years. 

2. Unmarried fathers

If you are not married, the father will not be treated as the guardian unless:-

  • There is an order recognising you as guardian (s. 2(1) – definition of father  and S. 6A);
  • He was married, he is the father of the child but the marriage was annulled and the nullity was granted after the birth of the child or in the 10 months period before the child was born  (s. 2(1) – definition of father  and ss. 2(3)(a)(I));
  • He was married, he is the father of the child but the marriage was void, but the father reasonably believed he was part of a valid marriage and the “marriage” occurred before the child was born or 10 months before the child was born (s. 2(1) – definition of father  and ss 2(3)(a)(ii));
  • He is a guardian pursuant to a foreign guardianship order recognised in Ireland (s. 6D);
  • The father and mother are not married but they have agreed that the father shall be guardian and have entered into a statutory declaration to that effect (s. 2(4)); or
  • The mother and father are co-habiting for over a year (s. 2(4A))
The position of unmarried fathers is protected

3 Other Potential Guardians

The legislation continues by stating on the death of either father or mother that the survivor shall be the guardian (s. 6(2) and s. 6(3))

It should also be noted (s. 6C) that a person (“applicant”) who is not a parent of the child may apply to court to be a guardian in the following cases, that is where the applicant is over 18 and is:-

  • married to a parent of the child;
  • in a civil partnership with a parent of the child; or
  • co-habiting with a parent of the child for more than three years

as long as the applicant has shared with the parent responsibility for the child’s day to day care for more than 2 years (s. 6C(2)).

Further an applicant over 18 can apply to court to be a guardian even though they are not the parent where the applicant has provided for the child’s day to day care for a continuous period of more than 12 months and the child has no parent or guardian who is willing or able to exercise the rights of guardianship (s. 6C(2)(b)).

4 Testamentary Guardians and Wills

Section 7 provides for the appointment of testamentary guardians.  The testamentary guardian shall be guardian of the child along with any surviving guardian.  The testamentary guardian can only be removed by court order (s. 8(4)).  The section makes provision that the surviving guardian may apply to court to remove the guardian (s. 7(4)(a)) or the testamentary guardian may apply to court to prevent the surviving guardian from having custody of the child (s. 7(4)(b)).

On the application the court may make the following orders (s. 7(5)):-

  • To revoke the appointment of the testamentary guardian;
  • That the testamentary guardian shall act jointly with the surviving guardian; or
  • The testamentary guardian shall act to the exclusion of the surviving guardian.

When a court makes an order on foot of applications to it in respect of guardianship it shall also make such order regarding custody and access as it thinks proper.  It can also order that a parent of a child pays maintenance to the guardians as it considers appropriate 7(6).

Where a person dies without appointing a guardian or a child has no guardian or where the testamentary guardian refuses to act then a court appointed guardian may be made (s. 8).

Careful consideration needs to be given to the appropriate guardian

The discussion regarding guardianship normally arises in the context of wills for married couples with young children and catering for the last survivor.   A trustee or executor need not be the guardian of the child and it is usual to advise a client that the child or children will live with the guardian and the guardian is the person that would be most suited to rearing a child, that is looking after his or her emotional, cultural and religious needs as they grow up. 

We normally advise clients to speak to the potential guardians prior to their appointment, but circumstances differ. We also advise clients where possible to discuss the matter with their children. Obviously such discussions must be handled reassuringly and in a calm way.

We also advise that children should be kept with the same unit (that is not split up children between families if possible) and if possible be reared by a couple.  Depending on the circumstances our advice is to nominate two guardians.  The appointment of guardian would fail for uncertainty if the appointment refers to “I appoint John or May as guardians of my minor children”.  The normal clause for the appointment of guardians is simple:-

In the event that my [spouse] does not survive me, I appoint my brother John and his wife Mary of [insert address] as guardians of my children.

This clause will treat the guardians as joint guardians.  On the death of one guardian the survivor will continue to act as guardian of the child.