When you first start a family, the last thing you want to think about is what will happen to them if something happens to you. But writing a Will and stating your preferences for guardianship of a child or children is important, and we would urge new families to consider taking action.
What is a legal guardian?
Guardianship is governed by the Children Act 1989. Under section 5(3) of the Children Act, a parent who has parental responsibility can appoint another individual to be the child’s guardian in the event of his or her death, and until the child reaches the age of 18. If both parents have parental responsibility, the guardianship will not take effect until the death of the surviving parent.
Simply put, a guardian is the person or persons you feel would be best placed to raise your child if you were not there to do so. Having a say over who will take responsibility for your child or children in the event of your death, can bring peace of mind for their future welfare and well-being.
It is, however, a very critical – and binding – decision, so care and time should be taken.
How should we choose a guardian?
Choosing a guardian is not to be taken lightly; it is easy to think that they may never be needed (and we would certainly hope they are not) but it is important to think carefully about to whom this responsibility should fall.
The following outlines some considerations:
- Personal circumstances: You may have a friend or friends who seem the ideal choice, but there may be circumstances about which you have no idea (and no control), which might render them unsuitable. If their dream is to retire to the south of France, or travel the world in a camper van by the time they are 50, how would your children fit into these plans?
They may have other commitments (such as their own dependants or caring responsibilities), which would make taking guardianship of your offspring difficult. It is also worth considering location and considering if you would want your children uprooted from schools, or living far from family, should your chosen guardian not live near you.
- Choosing your parents as guardians: If you are considering appointing family members – such as your parents – it is important to remember that while they may be fit and well now, how would they feel about looking after a young family in later life? There is also the question as to which set of parents one should choose – choosing one over the other could cause tension in itself.
- Siblings as guardians: You may get on brilliantly with your sibling, but how is their relationship with your parents? If it is a difficult or strained relationship, could this impact upon the upbringing of your child? If your sibling has family of their own, there is also the practical aspect of whose home would become the new family home? One familiar to their children, the one familiar to your recently bereaved offspring or a new one altogether?
- Future upbringing: If you have religious faith, it will likely be of comfort to you to have your children raised in a family which shares this. This might also extend to political beliefs, views on education or parenting style.
How do I approach a potential guardian?
Once you and your partner have decided upon who you should ask – and you must ensure you have consensus – we would suggest openly discussing your wishes with the potential guardian before naming them in your will. They must be comfortable with the decision, understand why you would like to appoint them and be willing to take on this responsibility.
It is important to remember that this is a significant request; you may find that you are turned down, and you must respect that decision. It is also likely that they will want time to process the request and may ask you in turn to fulfil this role for them.
What if things change?
Whomever you choose, you must ensure that you are also completely comfortable with the decision. It is also worth reviewing your choice over time; people’s personal circumstances can change in terms of their financial set-up or their own family situation. If the marriage of an appointed guardian breaks down, how would your children fit within this new family arrangement? If a guardian was to later move overseas, there will be issues in regards to the fact that they are no longer resident in the UK, and, potentially, problems in obtaining the correct visas for your child to move abroad, not to mention the emotional upheaval of separating the children from friends and family.
What happens if we do not name a guardian?
If no guardian is named, the situation could be resolved in a number of ways:
- Your child or children could be placed in the protection of social services;
- There could follow a custody battle involving potential guardians, which would result in the courts granting custody to the most appropriate applicant/s (as deemed by the judge and based on relationship with children) or by prioritising such considerations as the ability to keep children together;
- A single, unopposed guardian would have to apply for formal custody.
The issues surrounding what happens to your child or children in the event of your death are complicated and will be upsetting to consider. Ensuring that guardianship is resolved legally will allow you to remove any ambiguity or potential conflict in the event of your death. Taking the right legal advice and putting a plan in place will bring peace of mind that your children will be protected after you pass away.
How do we appoint a guardian?
An appointment of a guardian for your child or children must be made in writing, signed and dated.
The appointment need not, therefore, be in a Will. However, most parents choose to appoint guardians by Will and this is good practice because a Will is less likely to be forgotten or mislaid after a death than a separate, less formal document. Parents also usually intend the appointment to take effect on their death, which is when the rest of the Will takes effect. If the appointment is made in a Will, this must be signed in the presence of two witnesses who each attest your signature.
Our friendly experts regularly advise on the matter of guardianship and the preparation of Wills, as well as more complex (and more straightforward) circumstances.
For initial advice or to arrange a meeting with one of our team, please email firstname.lastname@example.org or contact 020 7631 4141 and ask to speak to one of the Private Client team.
The above is accurate as at 05 August 2020. The information above may be subject to change during these ever-changing times.
The content of this note should not be considered legal advice and each matter should be considered on a case by case basis.