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Protecting Against the Worst: Guardians in Wills

If you and your partner die, what happens to your child? Do they get looked after by your next of kin? The child’s Godparents? Evil Stepsister?

The answers to the above are ‘no’, ‘no’ and ‘only in fairy-tales’, but let’s start at the beginning…

What matters, whether parents are alive or if they die is who has Parental Responsibility. While the parents are alive the mother will always have it and the father will (generally) have it if they are married or in a civil partnership to the mother or if they are named on the child’s birth certificate. There are adoption orders and other court orders which can grant or remove parental responsibility, but let’s leave those for another blog.

We are, I’m afraid, jumping the gun somewhat. It’s important to remember that parental responsibility is not the same as custody of a child. Those with parental responsibility make decisions about the child, including where and with whom they live. If, for example, the court or a Will granted parental responsibility to the grandparent of a young child, the grandparent is not required to have the child live with them – they may reasonably think the child should live with someone else, but they make the decision and remain responsible for the child.

But let’s return to our dire situation. Say you and your wife, husband or civil partner have a young child and you both die at the same time or, at any rate, before the child is 18. If you have not appointed Guardians, the family courts and social services will be involved in deciding what happens to your child and who has parental responsibility for them. The court will take the child’s best interests as their primary driver, but will not hold any wishes you had in high regard. However, as I hinted above, you can make the decision during your lifetime as to who has Parental Responsibility if you both die. This is called appointing Guardians.

Guardians need to be appointed in a Will – an oral or informal written statement will not do. You can appoint one person or more, though be aware that it is generally inadvisable to appoint more than two so they can act together to make decisions for the child. The person or people you appoint to be Guardians of your child also do not need to be the same as the Executors of your will – after all you may trust your accountant friend or your lawyer to administer your estate, but not to decide where your child goes to school.

If the unthinkable were to happen, how would the Guardian(s) afford to raise your child? Are they independently wealthy? Are you giving them a large part of your estate? If not, you can think about ‘family benefit insurance’, sometimes called guardianship insurance. This is generally only a few pounds a month and would pay your Guardian a yearly sum to help them raise your child.

Sorting out a life and upbringing for your child if you were to die is one of those things which can really put your mind at ease. It should never be needed; you should live many happy decades past your child’s 18th birthday. Unfortunately, this is not always the case and it’s better to take the bull by the horns and sort these things out while you can.

If you want to make a Will or get advice on Guardianship, our Private Client team is always happy to help.

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