Parents often worry about who will look after their children should they die before the children reach 18, especially if they have divorced or separated. The good news is that it is possible to appoint guardianship in a Will so that arrangements are in place for their children should something happen to them.
Parental Responsibility:
Parental responsibility is often shared, so that when a parent dies, the other person with parental responsibility will continue to be responsible for the child and so it follows that no guardianship appointment can come into effect until there is nobody with parental responsibility left alive.
Parental responsibility means making decisions on behalf of a child below the age of 18, for example, where they live or where they go to school.
While fortunately, it does not happen often, some parents will die while their children are still minors. This will almost certainly be the most traumatic event in their children’s lives, so it’s essential that parents put in place arrangements that will guarantee certain, immediate and appropriate care for them.
Common Misconceptions:
Writing a Will can give certainty of outcome should there be no-one with parental responsibility. Here are some examples of popular misconceptions regarding guardianship:
- “The father will automatically get guardianship if the mother dies.” If the biological parents aren’t married and the father has not acquired parental responsibility by marrying the mother, being listed on the birth certificate, or getting a court order bestowing parental responsibility on him, he won’t automatically become the legal guardian.
- “The kids will just go to my mother – she looks after them half the time, anyway.” In the absence of a Will or other document appointing your mother as guardian, this will not automatically happen. It may be necessary to apply to court to formalize this appointment. In some scenarios, there is even the risk that children are taken into care while guardianship is clarified.
- “My ex-husband has never spent time with his children, I want to appoint someone else as guardian.” If the mother was married to the children’s father when they were born, he has parental responsibility and will automatically be the guardian if she dies. He may not want to exercise this parental responsibility, however, so the appointment of a guardian by Will is still important, just in case.
- “I want a different guardian from the one chosen by the father – the children’s guardian will be the one appointed by the Will of the last to die.” Not so – if the parents appoint different guardians, they must agree on decisions relating to the children, and if they can’t, it will be for the court to decide.
- “I don’t need to appoint a guardian, I appointed godparents when my children were christened.” Not true – while godparents can have a pivotal role in the upbringing of children in terms of moral and spiritual guidance, they have no legal rights in respect of children in the event that their parents die. If you wish your children’s godparents to also be their legal guardians, you should make such an appointment by Will.
In summary:
If no formal guardianship arrangements have been made, it will be for the court to decide who to appoint as the legal guardian for the child, and this may not be who the parent would have chosen for themselves and in the worst-case scenario, the child could be placed in foster care while the court process took place, adding additional stress at an already traumatic.
If you wish to make a Will to include an appointment of guardianship, please contact myself, Sara Hilliard on 01332 364436 or at s.hilliard@timms-law.com.
