Choose who will take care of your children when you cannot
Be pragmatic and consider the views of your children
Your Guardians will need to get on well with the Executors and Trustees
Have you considered appointing reserve guardians, just in case
The guardianship of our children is often the main concern we have as parents, if we die. Unless we stipulate who is to act, either through a ‘parental responsibility agreement’ or through making a Will, others will decide upon the future custody of our children.
Should you die without making a Will, or if you do not appoint guardians in your Will, your children could be placed with relatives or in foster care or in residential home until the Court appoints official guardians to look after them. This could take months and would obviously result in distress for your children and other members of your family too.
Guardians can only be appointed by someone who has parental responsibility, and the appointment ‘passes on parental responsibility’ so it is also worth asking who you intend to appoint to make a Will themselves to further safeguard the future of your children.
The birth mother always has parental responsibility, the father only has it if he was married to the mother at the time of the birth (or subsequently marries her), or if he was awarded parental responsibility either through a parental responsibility agreement, or if the child was born after 01/12/2003 where he is named on the birth certificate.
On the death of the first parent, the surviving parent usually assumes full custody of minor children where the parents were married. Even if the parents were divorced the surviving parent is normally entitled to resume full custody, however this right will not necessarily be exercised – divorced parents may still choose to name friends or relations as the first choice for guardians instead. Unmarried fathers do not assume automatic custody rights unless a parental responsibility agreement is in place.
The ultimate decision on who is to act as a guardian to minor children rests with the local Social Services. Naturally they will try to abide by the wishes expressed in a legally valid Will whenever possible and within the bounds of what’s in the best interests of the children.
Guardians may also be appointed as executors and trustees in the same Will. It can be useful if at least one guardian is also appointed to be an executor and trustee so that funds can be advanced most conveniently when required for day-to-day living arrangements. It is the trustees who are responsible for exercising their ‘powers of advancement’, to filter money through for your children’s wellbeing and to prevent the guardians to your children being out of pocket as a consequence of so acting.
Guardians then are responsible for looking after children until they reach 18, so you should consider the age and ability of your guardians carefully, their location with regard to your children’s friends and school life, their ability to manage financially (with the support of your estate held in trust of course) and any religious or moral issues they may have that are compatible (or otherwise) with your own beliefs.
Choose wisely and take plenty of time to discuss your views with whom you intend to ask.
Top 10 reasons to get a Will
- You decide how your estate will be distributed
- You decide who will take care of your minor children
- Helps to avoid a lengthy probate process
- Minimise estate taxes
- You decide who will wind up the affairs of you estate
- You can disinherit individuals who would otherwise stand to inherit
- Make gifts and donations to friends, family & charity
- Avoid greater legal challenges
- Because you can change your mind if life circumstances change
- Because tomorrow is not promised
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