22nd October 2018
The possibility of both you and your partner dying while your children are still under 18 verges on the unthinkable but, however unlikely this situation might seem, it is important that you make provision for it in your will. Unless you have given specific instructions, children left without any parents can be placed in care and the court will appoint an official guardian to look after them. You can avoid this by appointing a guardian of your choice, providing peace of mind that your children would be left in the care of someone you trust.
Stephen Myers, private client solicitor with Myers & Co Solicitors in Stoke-on-Trent, explains more.
A child’s natural parents usually have what is known as parental responsibility for them, and they can appoint a guardian to take on this responsibility in their place if they both die. The guardian will only officially take on this role if there is no one else alive with parental responsibility, and it will end as soon as the child is 18.
Guardians make decisions about important aspects of a child’s life, such as their education, medical treatment and where they live. A guardian is not required to support a child using their own resources, so they need to be provided with regular income or a lump sum of money to help them financially when carrying out their role.
If you die, your children may stay with family or friends but, if you have not appointed a guardian this would be only a temporary arrangement. The local authority might take your children into its care while a court decides what long-term arrangement would be best. This can be more complicated in complex family situations where, for example, there have been second marriages and it may not be immediately obvious where would be best for the children to live. This lack of certainty can be traumatic, especially for young children, and can lead to family disagreements about who should care for them.
As well as providing certainty for your family, appointing a guardian allows you to choose someone you and your children know and trust, and to make a considered choice. For instance, although grandparents might be an obvious option, will they be able to look after teenagers in their old age? You also need to consider things such as where the guardian lives and what this might mean for schooling, and whether you are comfortable with the guardian’s parenting style, values and religious beliefs.
There are lots of issues to consider when appointing a guardian in your will, so it is important to seek legal advice at an early stage. Your solicitor can draw up a new will for you, or add the guardianship appointment to an existing one.
At the same time, your solicitor can make financial arrangements for your children in your will. You may wish it to say that if both parents die, the money left after paying debts and expenses – known as the residuary estate – is held on trust for your children until they reach a certain age. The trustees of the money usually have the power to make some of it available for the children’s benefit, for example, to pay school fees or to be given to the guardian to use. Some parents also choose to leave a cash gift to the guardian as an expression of gratitude.
Over time you might change your mind about your chosen guardian and want to appoint someone else instead, for example if your first choice becomes ill. Your solicitor can help you either to make a new will or to make a codicil, which is an addition to your will that modifies part of it.
Your solicitor may also recommend that you have a document known as a letter of wishes. This is read alongside your will and can provide guidance on how you would like your children to be raised or money in a trust fund to be spent.
It is also important to consider what would happen if your children were left with only one parent and that parent loses capacity, for example, because of a brain injury. In that situation, a legal document called a lasting power of attorney (LPA) would allow people of your choice to make decisions about your children on your behalf. An LPA cannot give someone legal responsibility for your child, but it can give them the ability to manage your finances. It can also allow them to access your money immediately if necessary, which might be very important where children are concerned.
This article is for general information purposes only and does not constitute legal or professional advice. Please note that the law may have changed since the date this article was published.