A guide to appointing guardians in your will.
There is a general conception that Wills are for the elderly and those in ill-health, but life is uncertain and everyone needs a Will, to ensure your hard-earnt assets go to the people or causes which you care the most about.
Certain events prompt people to make a Will such as an increase in personal wealth, buying a property and having children.
When parents make Wills, they want to ensure that their children are provided for in the best way. Whilst the primary focus is usually on financial provisions, what about your children’s welfare, especially if both of you die?
Nobody wants to think about dying young or leaving their children behind, especially young children but what happens if you should die before your children reach the age 18? Those under the age of 18, in the eyes of the law, are classed as minors. If their parents are dead, they will need a legal guardian to help and support them.
A guardian may be appointed through a Will to have parental responsibility for your children. Parental responsibility means all the legal rights, powers, responsibility and authority of a parent (as stated in the Children Act 1989.)
Guardians have the legal rights and responsibilities of parents. In many cases the children will live with their guardians, but this is not always possible or necessary. For instance, the parents may be divorced and the children live with their mother. Father dies and by his will he appoints his parents as the guardians of his young children. The children continue to live with their mother the guardians (grandparents) are able to help make the major decisions and will have rights to have regular contact with the children
Whether you are thinking of making a new Will or revising a current Will to ensure that your children are looked after, here are a few things you may want to consider.
What happens with your children if guardians are not appointed?
If you do not appoint a guardian, an application to the Family Court may be necessary. This may be by a family member or by local Social Services.
In some circumstances, children could be placed in care until the court appoints a guardian, which could be lengthy and add to your children’s distress.
A verbal agreement between family and friends is not considered to be enough to satisfy the Courts of a guardianship.
What if I am divorced?
On divorce you will usually have retained parental responsibility for your children even if they do not live with you. As a result, you will be able to appoint a guardian. Because of the divorce, this can be a particularly sensitive issue and you will need legal advice tailored to your circumstances and the needs of your children.
When do you need to appoint a Guardian?
If you are married at the time of your child’s birth and either the mother or the father dies, the surviving parent will have parental responsibility for the children. Similarly, if you are not married and a father dies first, the mother will retain parental responsibility. However, if you are not married, the father will only have sole parental responsibility where he is named on the birth certificate of a child who has been born after 1 December 2003.
What are the benefits of appointing guardians?
- You can be sure your children are going to be looked after by someone you have chosen and trust.
- You will know that important decisions in your children’s life such as education, housing, medical treatment are in the hands of someone who knows of your plans or who can be trusted to make sensible plans
- You can leave money to your guardians to cover the costs they will incur, so that you know your children would be bought up comfortably without financially burdening their guardian.
- You can might be able to make your house available for your children and their guardian
How to choose a guardian?
Being a guardian is a big responsibility. You must discuss it with the people you choose and get their input and agreement.
You can appoint up to four guardians in your will and these are some of the things you may want to think about:
- Who is most able to care for child emotionally, financially and physically?
- Who do your children already feel comfortable with?
- Who can provide similar parenting styles and values of your own?
- Would the person have enough time and energy to devote to your children?
- Would your children have to move far away and uproot their life?
- Does the person you’re considering have any other children?
Most people appoint only two guardians, such as another couple. It is usual for a couple to appoint the same guardians in relation to their children as they usually only become effective on the death of the second parent. However, young couples with children commonly appoint both sets of the children’s grandparents and leave a separate letter of guidance incorporating the above factors as to how they wish for their children to be provided for.
We always recommend naming substitute guardians especially if your original guardians are older than you (e.g. if you are appointing your own parents). This can save you having to change your Will in the event your primary guardians are unable or unwilling to act.
A guardianship clause may be changed or cancelled as often as you like during your lifetime, to fit with changes in your personal circumstances.
Naming a guardian should be regarded as an important part of any parent’s estate planning, if not the most important. By including a guardianship clause in your will, the appointment is easily identifiable and can be considered quickly. You can see that issues relating to guardianship can become very complex. These are some of the most critical decisions you will make to protect your children