Wrong assumptions about Guardianship

Wrong assumptions about Guardianship

Sadly, every 22 minutes a parent in the UK dies leaving dependent children. Statistics show that 1 in 20 children will have lost at least one parent by the age of 16.

Guardianship is a common trigger for making a Will

Every parent will be keen to ensure that arrangements are in place for their children should something happen to them. While it isn’t easy for clients to think about such circumstances, about 1 in 5,000 parents will die while their children are still minors. This will almost certainly be the most traumatic event in their children’s lives, so it’s vital that parents take steps to guarantee who will take care of them.

Here are some of the most common – and incorrect – assumptions specific to guardianship:

  1. “The father automatically get guardianship if the mother dies.”

If the biological parents aren’t married and the father has not acquired parental responsibility by marrying the mother, being listed on the birth certificate, or getting a court order bestowing parental responsibility on him, he won’t automatically become the legal guardian.

  1. “The kids will go to my mother.”

In the absence of a Will or other document appointing your mother as guardian, this will not automatically happen. It may be necessary to apply to court to formalise this appointment. In some scenarios, there is even the risk that children are taken into care while guardianship is clarified.

  1. “My ex-husband has never spent time with his children, I want to appoint someone else as guardian.”

If the mother was married to the children’s father when they were born, he has parental responsibility and will automatically be the guardian if she dies. He may not want to exercise this parental responsibility, so the appointment of a guardian by Will is still important, just in case.

  1. “I want a different guardian from the one chosen by the father – the children’s guardian will be the one appointed by the Will of the last to die.”

Not so – if the parents appoint different guardians, they must agree on decisions relating to the children, and if they can’t, it will be for the court to decide.

  1. “I don’t need to appoint a guardian, I appointed godparents when my children were christened.”

Not true – while godparents can have a pivotal role in the upbringing of children in terms of moral and spiritual guidance, they have no legal rights in respect of children in the event that their parents die. If you wish your children’s godparents to also be their legal guardians, you should make such an appointment by Will.


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