Who will take care of your children if the worst should happen?

News Article

Parents who have children under the age of 18 are being urged to review or make a Will to ensure they have appointed a legal guardian.

Lee McClellan a partner and Wills expert with Palmers said: “As a parent, no-one wants to think about dying. The thought of not being there for your children in their formative years is a commonly held fear. Whilst fortunately it does not become a reality for most of us, it is important to have a plan in place to ensure that your children are properly cared for by a person or people you trust in the unlikely event that the worst should happen.

“A guardianship clause in a Will not only gives you peace of mind that you have made appropriate arrangements, it will also save any confusion, misunderstanding or family disagreements further down the line.”

Appointing a guardian means they would be given parental responsibility in the event of your death which legally allows them to make decisions regarding the upbringing of your child. This includes deciding, for example, where they live and where they go to school and consenting to medical treatment on their behalf.

It is important to note that whilst a mother automatically has parental responsibility, this will not always be the case with a father who is not married to the mother. It is also worth noting that an appointment of a guardian under a Will can usually only take effect when there is no other person alive with parental responsibility. Mothers who are not married to the child’s father should therefore not assume that the father will automatically have parental responsibility for the child if something should happen to them, nor can they assume that any other guardian they might appoint will obtain parental responsibility if the child’s father is still alive.

If a guardian has not been named in a Will, the children may often be allowed by the courts to stay with whoever is caring for them – a friend or a relative – on a temporary basis, by way of an interim court order. Where this is not practical, the court can grant a local authority temporary parental responsibility. Once temporary arrangements are in place, the court will assess what is in the best interests of the children before granting a care or supervision order.

Lee continued: “Allowing the courts to decide who will care for children can be complicated and upsetting for those left behind, which is why it is so important to appoint a guardian under your Will. However, there are a number of important considerations to be aware of when appointing a legal guardian in your Will.

“Naming grandparents may seem a natural step but if they become infirm themselves or are unable to look after your children due to their advancing years, it helps to have a back-up plan. You should also be aware that a person named as a guardian in your Will isn’t obliged to act so you should always check that the person you wish to name is willing to do so in principle.

“A guardian is not legally obliged to financially support your children with their own money. Your trustees would usually have the discretion to advance monies to the guardian for the maintenance of the children and you may wish to consider leaving a separate written indication of your wishes so that the trustees managing your estate are aware of how you wish any income or capital to be used, to ensure your children are well looked after and provided for.

If you have not already appointed a guardian and have children under the age of 18, please contact Palmers to discuss reviewing or making a Will.