Guardianship – ‘What would happen to your children if you died?’

In the event of your death, what is it you would like to happen to your children?

Currently in the UK, only 67% of adults have a valid Will, and whilst not all of them will have needed to appoint guardians for their children, it is certainly something that many of them will have considered. Deciding who you would like to bring up your children is likely to not be easy, however the thought of knowing that someone you trust will be looking after them after you’re gone should certainly bring some comfort to the matter. After all, the alternative is letting the courts decide on their guardians, something that surely any parent would wish to avoid.

The appointee will only become the child’s guardian if at the death of the testator:

1. No parent with parental responsibility survived him; or
2. There was a residence order in his sole favour relating to the child.

Without any guardians in place, under Section 5 of the Children Act 1989 the courts can appoint guardians for a child if there are no parents with parental responsibility, i.e. not named on the child’s birth certificate. Guardians may also appoint a successor, and this is not something that needs to be done in the testators Will.

It may seem obvious, but when appointing guardians in your Will, we always advise that you seek consent of those you wish to appoint, prior to naming them in your Will. The loss of a friend or family member can be shocking enough without unexpectedly having to take on the responsibility of children. You may also want to consider leaving a gift to the children in your Will as this may be paid to the guardians to use towards the maintenance, education and benefit of the children while they are minors.

Having appointed guardians for you children, you may also want to think about writing a letter of wishes to lay out how you want your children to be raised specifically. You could perhaps express how you wish for your children to continue with certain activities such as music lessons, or afterschool clubs. Other examples may include guidelines as to religion, or their education. It should however be remembered that a letter of wishes is just that. It is not legally binding and cannot be enforced, and as such it is advisable that when appointing guardians, you choose somebody who will follow the wishes you have set out.

Guardianship – give it some thought.