Most of us have probably come across the term “guardian” or “guardianship,” but have you ever stopped to think about whether this is something you need to put in place?
As a parent, we pray that this is something we never need to consider but do you know what will happen to your children if you don’t appoint a guardian in a valid will?
Many of us wrongly believe that our children’s Godparents or similar will automatically be appointed as your children’s guardians but the reality is very different. Quite simply, the Courts appoint a guardian for your children; they will decide who in your family they believe is best placed to care for them or worse still, they may place your children into care.
The safest option you can take is to make provisions for your children in your Will.
We understand that determining who will be the guardian of your children is one of the most important decisions as a parent that you will have to make and can be quite an overwhelming task so we have put together some guidance:
So What is a Guardian and Who should I Appoint?
A guardian is someone who has the legal authority to take care of a child (under the age of 18) in the event of the death of their parents or carer. Their duties include:-
- choosing and providing for the child’s education
- consenting to any medical treatment for the child
- providing support for the child – emotional as well as financial
- provide shelter and care for the child
- general maintenance i.e. clothes and food
You can appoint more than one guardian but make sure the people you choose will be able to agree on what is best for your children.
If you decide you want the guardians to act jointly (instead of jointly and severally), this effectively means all guardians would be required to agree on every single point relating to the children’s upbringing, which school they go to etc. This can obviously cause issues and potential conflict between the guardians.
In some cases, where only one guardian has been appointed, it would be advisable to appoint an alternative guardian in the event the appointed guardian(s) are unable to fulfil their role for any reason.
Things to Consider when Appointing a Guardian
- Location– do they live nearby? If not, your child will be moved away from their school and friends which is all familiar territory to them and their “safe place.”
- Lifestyle– if the children have been born and raised in the UK, they will be used to a lifestyle. Does your guardian share a similar lifestyle?
- Other children– does your guardian have other children and will they able to raise another child?
- Stability– it is important that your children become part of a stable family environment, both financially and emotionally.
- Personality– does your guardian have certain personality traits i.e. patient, caring and trustworthy?
- Familiarity– does your child know and like the guardian?
- Values– are there any cultural or religious values you’d like your children to be raised with? Does your guardian share the same values?
- Capacity– does your guardian have the mental and physical ability to raise the children? i.e. if children are minor
Can I Leave Money for my Appointed Guardian(s) in my Will?
The simple answer is yes.
One option is to include this as a money gift in the will which will enable you to specify that the gift is conditional on them acting as a guardian. However, there is no guarantee that the guardians will use it towards the children’s maintenance.
The other alternative is that if assets are being left to the children, the trustees can use the trust income and capital towards the children’s maintenance and benefit. The trustees could do this either by using trust assets directly for the children’s benefit, by transferring income or capital to the child’s parent or guardian whilst they are a minor or to the child directly once they are no longer a minor.
Losing parents can be extremely distressing for children so make provisions in your will now which will make the transition less painful for your children later in life but equally give you the assurance that your children will be well looked after and loved by someone you trust should anything happen in the future.
Speak to one of our friendly team today to see how we can help you to protect your most treasured possession.