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Thinking about the unthinkable: appointing guardians of your children

Blog One of the most important reasons to make a Will if you have children is so that you can name a legal guardian.

Having children is often a catalyst for making a Will as, naturally, you want to protect them. Doing so gives you the opportunity to ensure that you have an input into their future after you die, protecting them from a number of financial and emotional hardships.

Whilst this may feel a little morbid, particularly if you have just had a baby and you are enjoying being a brand new parent, once you fully understand what a Will can do to protect your children, making one could move to the top of your to-do-list…

One of the most important reasons to make a Will if you have children is so that you can name a legal guardian. Having a say over who will look after your children if you die means that you feel more at ease about their future care and welfare.

However, as this is such a critical decision to make, it is important that you give it some thought.

Here are the answers to a few common questions which may help.

What is a guardian?

A guardian is someone who is appointed to look after minor children in the event that both of their parents have died before they reach the age of 18. Appointing someone as a guardian does not mean the child has to live with them.

The guardian makes the key decisions for the child, including:

  • Education
  • Health & welfare (including medical treatment)
  • Discipline
  • Religion

Who do I appoint?

This is often the most difficult decision to make; you want to ensure the right person is appointed but you also understand that you are asking someone to take on a huge responsibility.

There are a number of factors to consider when deciding who you should appoint:

  • Do your children already have a close relationship with someone who would be willing and able to act as a guardian?
  • Does that person share your parenting style, beliefs and values?
  • Would the person be able to dedicate the time required to raise children?
  • Many people consider appointing a couple as guardians for their children but this should be avoided, if possible. If the couple separate at a future date, this could cause complications.

Always ensure you seek the agreement of the intended guardian.

Is your chosen guardian(s) able to dedicate the time required to raise children?

What if my partner and I can’t agree on a guardian?

It is always best to try and reach an agreement on who will act as your guardian and for you both to make the same appointments under your Wills.

What if I am separated from my child’s mother/father?

It is important to remember that the appointment of a guardian only takes effect when both parents (assuming both have parental responsibility) have died, leaving minor children.  If one parent dies and the other has parental responsibility, the ex-spouse/partner/civil partner will become solely responsible.

It is important to try and talk and agree on the appointment of the same guardians, if possible.

How do I appoint the guardian?

To be able to appoint a guardian, you must either have parental responsibility for the child or be their existing guardian. The appointment must be made in writing, signed and dated.

We would advise however, that the appointment should be made by Will which is more likely to be held safely and is a document which would be located in the event of death. It will also allow you to make additional provisions for both your children and guardians.

Will the Guardian(s) be able to access funds to assist them?

A guardian is under no obligation to support children from their own resources. It is important to consider how financial assistance may be provided and this is something to consider under the terms of a Will.

There are a number of options to consider:

  1. You could consider a cash legacy to the guardian, which can be made conditional upon them acting as guardian. This gift could be used to assist with, for example, the purchase of a new car or an extension to their home to make additional space.
  2. Most Wills provide provision that on the death of both parents, the estate would be divided equally between any surviving children. The executors (acting as trustees), usually have powers to use the money held on trust for the benefit of the children or to pay it to the guardian, to be used for the children’s benefit.
  3. The Wills could incorporate a power for the trustees to loan money to the guardians.
  4. A letter of wishes can be held alongside the Wills, making it clear how provision should be provided.

To discuss appointing guardians for your children, please contact us on 01284 701131 or via this website. We will be pleased to guide you through the process and answer any queries you may have.