If your children are under the age of 18, have you thought about making sure your will states who should care for them if both parents pass away?
If one parent dies and the other has parental responsibility, that parent will take over responsibility for any children and a guardian would not need to be appointed. However, if the other parent does not have parental responsibility or both parents with parental responsibility die and a guardian is not appointed in you will, then the courts will decide who looks after your children.
A child’s biological mother automatically has parental responsibility. For other parents, such as fathers or the second female parent in same-sex relationships, parental responsibility is not guaranteed. Parents therefore can’t assume that the other parent will automatically become guardian if they die.
Why should guardians be appointed?
If you don’t appoint a guardian in your will and no one has parental responsibility when you die, the courts will decide who will look after your children. It is not guaranteed that they will appoint the person or people you would have chosen, so it is better to make the decision yourself.
Following your death, your children are likely to stay with grandparents, other family members or friends on a temporary basis. An interim court order could be sought to formalise this. If this is not a suitable arrangement, the court could grant the local authority temporary parental responsibility. The court would then make an assessment as to what is best for the children and would formalise arrangements in either a care or supervision order.
A guardian, whether appointed under a will or by the court, has parental responsibility for the children within their custody and has all the rights, duties, powers, responsibilities, and authority that a parent holds.
Who should I appoint as guardian for my children?
This is something you need to consider carefully. Many people choose their own parents, but this might not be appropriate if they are old. Another common choice is your own brothers and sisters or close friends. A guardian must be an individual over the age of 18 and you should think about: –
- Do your children know the guardians? If so, what is their relationship like?
- Where do the guardians live?
- Do the guardians have their own children? If not, would they be able to look after a child?
- Do the guardians have similar beliefs and morals as you?
- Do the guardians have the financial ability to raise your child if your estate cannot cover all the costs?
It is important to note that your chosen guardians do not have to accept the appointment, so it is important that you discuss it with them, and they accept the responsibility, before appointing them as guardians in your will.
How will the guardian pay for my children’s upbringing?
A guardian has no responsibility to bring up a child using their own resources. There are several routes you could consider ensuring that the guardian can afford the upbringing of your child. For example, you could:
- Leave a gift of money in your will to the guardian
- Allow the trustees of your will to pay for things such as school fees and clothing or loan money to the guardians to buy a suitable property
- Leave a non-binding letter of wishes that gives guidance on how your trustees should use the money in your estate to benefit the upbringing of your children
How we can help
Our team are on hand to help guide you through every stage of making a will. For more advice on appointing a guardian to you will, guardianship clause or to make your will please call our team on 01925 418 004 or contact us online.