Guardianship in a Will
Although it is not something any parent wants to consider, the death of a Mother or Father places huge stress on children. Not just the initial bereavement but also the accompanying upheaval and monumental changes to their lives. Whilst it is not possible to protect children entirely from the loss, it is possible to take steps to ensure that the devastation caused by the death of a parent is not made worse by legal complications and uncertainty, so putting guardianship in a will can help reduce the stress and uncertainty.
What happens to children on the death of a parent?
The answer to this depends on your circumstances and the plans that you have put in place. If there is no surviving parent with ‘parental responsibility’, and no appointment of a guardian has been made, then the child becomes the responsibility of the Court.
Until such time as the Court appoints a guardian, the child may be taken into care.
In contrast, if a guardian has been appointed, then responsibility for the child’s care passes on the second parent’s death to that guardian. The guardian is likely to be a person known to the child or perhaps someone such as a step-parent who has been living with the child.
Godparents have no legal standing.
Appointing a guardian.
Perhaps the most important step you can take in making plans for your child is to put guardianship in a will. A guardian is a person who will effectively ‘step into the shoes’ of a deceased parent and assume responsibility for the child. Appointing a guardian, rather than leaving the decision to a Court, has several important advantages:
You can choose the person whom you would wish to care for your child, rather than leaving the decision to a judge.
You can discuss your wishes for your child’s upbringing with your chosen guardian and leave a detailed letter of your wishes with your will.
You can set up a trust for the child’s financial welfare with various stipulations for its execution within the will. You can discuss your choice with your family and pre-empt any dispute about who should care for your child after your death.
Choosing the right Guardians – practical matters
Each parent will have their own beliefs and priorities regarding the care of a child and it is theseconsiderations which are at the heart of choosing a guardian.
When deciding who should take care of your child in the event of your death, it may be helpful to Bear in mind the following points:
Do you trust your guardian to raise your child as you would have wished? Will your guardian’s lifestyle be able to accommodate your child? If not, are they prepared to make changes?
Does your guardian have children the same age? Does he or she have experience of parenting?
Is your chosen guardian fit enough to cope with the demands of a child over a number of years, particularly a young child? Is your guardian known to your child? Do they get on well together?
Does your guardian get on well with other members of your child’s family?
Does your guardian live locally? Will your child have to move school?
Will your guardian come to live in your home? If so, consider a trust in the Will permitting the guardian to live in your home following your death. If not, does the guardian have suitable accommodation for your child?
Is there likely to be a dispute over your choice of guardian? If so, is your guardian prepared to deal with it? Is there another choice you could make to avoid such a dispute?
Does your guardian share those values which are important to you – perhaps in relation to religion or education?