Revocation of appointment
4.52The Commission recommended that a power of revocation of an appointment of a nominated guardian should be provided for on similar lines to the provisions in section 6(1) to (4) of the Children Act 1989.555 Section 8 implements this recommendation.
When appointment should take effect
4.53The Commission felt that it was important, in the interests of the child as well as the guardian, that the guardianship of a child should not be imposed on anyone who was unwilling to accept it. Scottish law provides that some act needs to be done expressly by a minute or letter of acceptance addressed to the executors of the deceased parent or impliedly (from acts which are not consistent with any other intention) to accept the office of guardian.
4.54The Children Act 1989 in England is different as an appointment takes effect automatically but can be later disclaimed by an instrument in writing, which has to be registered in a prescribed way. The Commission did not agree with this provision as it would involve the guardian, who may not have been consulted about the appointment, in the inconvenience and expense of obtaining legal advice.556
4.55Section 7(3) provides that: “An appointment as guardian shall not take effect until accepted, either expressly, or impliedly by acts which are not consistent with any other intention.”
4.56The Commission recommended that “the rule that where two or more persons have any parental right each of them may exercise it without the consent of the other or others, unless the deed or decree conferring the right provides otherwise” should apply where there were two or more guardians.557 Section 7(4) provides that: “If two or more persons are appointed as guardians, any one or more of them shall, unless the appointment expressly provides otherwise, be entitled to accept office, even if both or all do not accept office.”
4.57If a testamentary guardian has been appointed, then after the death of the appointing parent, the surviving parent continues to have full parental responsibilities and rights. The Commission suggested that:
“in many cases it would be expected that the guardian would be content for the surviving parent to exercise parental responsibilities and rights but the guardian would be available, in reserve, just as an absent parent would be, in case of emergencies.”
555 Ibid at 3.7.
556 Ibid at 3.8.
557 Ibid at 3.15.