If you have children under the age of 18 you should consider a guardianship clause in your Will. Guardians are people you appoint to look after your minor children in the event of your death. If you’re married or in a civil partnership the surviving spouse assumes sole guardianship. If your spouse were to die before you, or the unthinkable were to happen that both you and your spouse were to die together, then you need to appoint someone else.
Typically people appoint close relatives, their parents or siblings that are prepared to act. Courts may well grant close relatives guardianship but you can make the process much simpler if you have a guardianship clause already in your Will. Of course you can name more than one guardian, and it’s a good idea to do so just in case the guardian you appointed was unable to act or no longer here. Once your children reach the age of majority they are considered an adult so guardianship would not apply.
So what do you need to think about when appointing a guardian? Well the first thing is whether the guardian wants to take on the responsibility. Are they able to financially, emotionally, physically? Does your child feel comfortable with the person you want to appoint, and do they have other children your child gets on with? Does the person you have in mind share your values and will they bring up your child the way you would want them to? It’s difficult enough for a child to deal with the loss of parents, so getting guardianship right is absolutely essential.
In order to appoint a guardian you must have parental responsibility. This means that you have a legal duty to care for the child. As odd as it might sound not all parents have parental responsibility. For example, a biological father that has been absent for years may not have parental responsibility. You can apply to the Courts for the parental responsibility, for example in the case of a same sex partnership where the child’s parent has died.
Divorce can add another twist, in that if a parent granted custody through a residence order, dies, the guardian appointed by that parent takes joint responsibility for the child with the surviving parent. The headache comes where the surviving parent and the newly appointed guardian can’t agree who should look after the child. In that case one party would have to make an application for a new residence order and the Court will decide who gets custody.
There are cases where one parent is flat against their child living with the other parent (usually their ex-partner) after their death. The best way to deal with this would be through a letter kept with your Will. Whilst it’s rare for a surviving biological parent to be refused joint guardianship, cases of abuse, alcoholism, or violence may prove to be an exception. Cases where there are children from current and previous relationships all under one roof can get a little hairy, and in these situations the Court could appoint different guardians for different children, and likely social services may be asked to step in.
Where no guardian is appointed the estate of the child would be looked after by the Public Guardian and Trustee, while the child themselves would be taken in by social services and placed with close relatives or a foster parent. Any surviving relatives would then have to apply to the courts for guardianship.
Wills aren’t all about money, paintings and property, and hopefully reading this will prompt you to think carefully about guardianship
This information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.
Penn Chambers Solicitors
0207 183 1485