This is a serious consideration for any parent, guardian, or special guardian of a child under the age of eighteen.
Who to appoint?
Should it be the grandparents, who are probably the closest to the children? A very good question! One of the first things to consider is how old are they? Depending on their age they might struggle to cope with the demands of teenagers or children with special needs. What happens if they too die, what message does it send? A child might think “whoever you live with dies” . This can have long term impact on a child’s emotional wellbeing. The older a grandparent is, you should consider a trusted friend, or a sibling. Ideally, someone who has children of a similar age and is willing and able to take on the role? When thinking about guardians you also have to think about how financially secure they are.
How does it work?
A testamentary guardian is simply a guardian appointed in your Will. A guardian is the person to whom parental responsibility will be granted immediately upon their death. The guardians are the people who will make decisions regarding the day to day welfare of your child or children. They will make choices about your child’s living arrangements, education and medical treatment.
The appointment as guardian will only apply if all those who already have parental responsibility for a child has died. A child’s mother automatically has parental responsibility for the child. If you are, or were married to the child’s other parent at the time of their birth and are named on the birth certificate, you will automatically have parental responsibility for the child. If you are unmarried, but did not register the birth jointly, then you shall need to ensure that your unmarried partner is named as guardian in your Will.
What about special guardians?
The rules differ slightly for those who are already appointed as special guardian at the date of their death. The last surviving special guardian’s choice of testamentary guardian will take precedence over anyone else who already has parental responsibility. This makes it especially important that the special guardian has made the appropriate appointment under the terms of their Will.
Guardian or trustee?
The role of guardian is not to be confused with the appointment of trustees under a Will. The role of trustee gives a person responsibility for managing the bereaved child’s money and property.
It’s also important to note that a divorce will revoke the appointment of a guardian under a Will. If a step-parent is appointed guardian of a child and subsequently divorces, the appointment will no longer be valid.
Whoever you decide to choose as guardian, you should obtain the consent of those you intend to appoint. It could be a bit of shock to find you have been appointed a guardian without being any preparation.
Gifts to guardians?
Taking on the role of guardian can be a big responsibility. You might have chosen the ideal guardians who would bring your children up as you would have. However, we often ask parents to think about the financial implications of taking on your child or children. Would they have to give up work, move or extend their homes to accommodate your children? It is hard to put a figure on what would be a reasonable gift. This would depend on how old your children are at the time of your death.
Wills are not forever Wills and your guardian’s circumstances may change
As your children grow older you may change your mind about who would best be suited to be guardians. You might have lost contact with the people you originally chose or their circumstances may have changed. When you have young children it is important to review your Wills every 5 years including choice of guardian.
If you would like specialist advice in relation to this area of law, or if you need to update your Will, contact me, Jennifer Norman at The Law House on 01507 499355 or e-mail firstname.lastname@example.org