Scottish law allows parents and guardians to formally appoint someone to take over that role. Section 7 of the Children’s (Scotland) Act 1995 sets out how parents and existing guardians can appoint a guardian for a child, and what rights and responsibilities that guardian will have.
This article looks at how guardianship appointments work and what makes them valid.
What Is a Guardian?
A guardian is a person who assumes parental rights and responsibilities (PRRs) for a child when the child’s parents are no longer able to do so. Guardianship is particularly important if the event of the death of one or both parents while a child is still under 16.
Under Section 7 of the 1995 Act, a guardian has the same responsibilities and rights as a parent as provided under Sections 1 and 2 of the 1995 Act. That includes safeguarding the child’s health, development and welfare, directing and guiding their upbringing, and acting as their legal representative.
Appointment of a Guardian by a Parent
A parent can appoint someone to be a guardian of their child in the event of their death. However, certain conditions apply:
- The appointment must be in writing and signed by the parent.
- The parent must have been entitled to act as the child’s legal representative at the time of their death (for example, holding PRRs).
Where one parent dies and the other survives, the surviving parent’s PRRs continue. The appointed guardian’s responsibilities exist alongside those of the surviving parent, rather than replacing them. This means a surviving parent still has full rights and responsibilities, but the guardian may also hold PRRs.
Appointment of a Guardian by an Existing Guardian
Section 7(2) allows an existing guardian to appoint a successor guardian in case of their own death. Again, this must be in writing and signed. This ensures continuity of care for the child.
Acceptance of Guardianship
An appointment as guardian does not take effect until it is accepted. Acceptance can be:
- Express (the person formally confirms acceptance), or
- Implied, through actions that clearly show they have taken on the role.
If more than one person is appointed, any of them can accept office unless the appointment document says otherwise.
Legal Effect of Guardianship
Once accepted, a guardian assumes the full parental responsibilities and rights under law. They step into the role of a parent for legal purposes, subject to any contrary order of the court.
Courts retain the power under Section 11 of the 1995 Act to regulate, remove, or vary PRRs if necessary. Similarly, under Section 86, guardianship can be affected by adoption or other orders.
Guardianship as a Major Decision
The Act also makes clear that the decision to appoint a guardian is a major decision involving the exercise of parental rights. This ties back to Section 6 of the Act, which requires that a child’s views should be taken into account in major decisions. Therefore, parents and guardians are expected, where practical, to consider the child’s views before making an appointment.
Why Guardianship Planning Matters
Appointing a guardian is one of the most important steps a parent can take in safeguarding their child’s future. Without a valid guardianship appointment, decisions about who cares for the child may end up before the court, potentially causing delay and uncertainty.
A written and signed appointment gives clarity and reassurance that your child will be looked after by someone you trust. It also helps avoid disputes between family members about who should take responsibility.
In short – Legal Requirements
For a guardianship appointment to be valid under the Children’s (Scotland) Act 1995 (Section 7):
- It must be in writing.
- It must be signed by the parent or guardian making the appointment.
- The parent must have PRRs at the time of death.
- The appointment only takes effect if the guardian accepts the role.
Important Notes
- Appointment of a guardian is a major decision – where possible, you should take into account the views of your child (especially if they are 12 or older).
- Guardianship does not take effect until your death. It does not remove your own rights or responsibilities while you are alive.
- For added certainty, many parents include guardianship appointments in their wills.
Conclusion
Section 7 of the Children’s (Scotland) Act 1995 gives parents and guardians the ability to plan ahead by appointing a guardian for their child in the event of their death. Such an appointment must be in writing, signed, and accepted before it takes effect. Guardians who accept the role acquire the full parental responsibilities and rights set out in law, ensuring the child is cared for and legally represented.
If you are a parent considering appointing a guardian, or if you have been appointed as a guardian and are unsure about your legal responsibilities, XK Family Law Solicitors Aberdeen can provide expert guidance and help ensure that the necessary steps are taken correctly.
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