It’s not a nice thought, but if you were to die who would you want to bring up your child? If you have not written a Will naming who the guardian or guardians are, the decision is left to the court.
The appointment of a guardian would only take effect if there was no one else alive who had “Parental Responsibility” *1. So normally the terms of the guardianship appointment would state that it only takes effect if both parents have died.
The court will consider several factors when deciding who has the responsibility to bring up your child. They will listen to the child’s wishes on where they want to live and who they trust but the weight of their wishes depends on their age and maturity.
The court will decide based upon what it believes is best for the child, which may not be what you would want. You may have siblings who could end up arguing over who should take responsibility for your child. Grandparents, subject to their age may believe they are best to care for their grandchild or at a minimum may want to have a say what happens!
This is all happening at a time of grief and upset for your child and the whole family.
How should a court know that you trust your lifetime long best friend to bring your child up more than a family member?
Hence, naming the guardian(s) in a Will is so important.
What is a guardian responsible for?
A guardian has the huge responsibility to bring up your child. They will make decisions on all aspects for your child, such as education, religion, medical treatment, emotional support, shelter, food, clothes.
They will also be taking on the financial burden to bring up your child. Without a will your child may inherit your estate, but this will be held in trust until they reach the age of 18.
What to consider when choosing a Guardian?
The most valuable thing in your life is your child so deciding and agreeing on a guardian needs thought and may not be straight forward. Here are some aspects to consider:
- Do you trust them unreservedly?
- Does your guardian share the same values as you?
- Do they demonstrate Victorian values or liberal values? This is a broad consideration requiring careful thought.
- Where do they live?
- Are they local, how much upheaval would there be for your child, changing schools, new friends?
- Would the guardian be offering a caring stable family environment?
- Are there children already in the guardian’s family, would these dynamics be positive or negative?
- Does your child have an existing relationship with them?
- Does the guardian have the capacity to look after your child?
- There are several aspects to consider:
- Physically are they capable and expected to be capable until the child reaches 18?
- For example, whilst a grandparent may be able to cope looking after your child now, would they be able to do so in ten years’ time?
- The cost of bring up a child, we all know is hugely expensive, does the guardian have the resources to financially support your child the way you would hope?
Once you have made your decision, it is vitally important that you discuss this with the proposed guardian(s) to ensure they would want to be a guardian to your child, it must be a joint decision.
Can I leave money to my guardian?
Yes, you can. A simple way is in your Will, you could leave a money gift conditional on them acting as guardians. However, there is no guarantee they will use the money for caring and providing for your child. The reverse is you are trusting them with your child!
If you write a Will and you are leaving assets to your child, the trustees can use the trust income and capital towards the children’s maintenance and benefit. The trustees could do this by using trust assets directly for the children’s benefit, by transferring income or capital to the guardian whilst they are a minor. You could then decide at what age over 18 years old your child should receive the assets.
How can we help?
We can help you write your Will to include guardianship clauses and if required to include trusts for the care of your child. Giving you peace of mind, if the unthinkable happened, your child would be cared for by the people you decide would be best.
Don’t delay contact us for a free phone consultation.
*1 “Parental Responsibility”
Family Law is complex and specific legal advice should always be taken for your circumstances. The following is only intended as a general guide.
A guardianship appointment can only be made by a person with Parental Responsibility.
Who has Parental Responsibility and how it’s obtained:
It is not automatic that in all cases the father or your partner has Parental Responsibility for the child.
- The mother automatically has Parental Responsibility with birth.
- If married, or civil partnership, the spouse of the mother obtains Parental Responsibility at birth.
- After the birth, to obtain Parental Responsibility, the father must marry the mother, or by jointly registering the birth in both names.
- As a step-parent, you can obtain Parental Responsibility by entering into a formal agreement with the mother. Alternatively, by agreement from the court.