I think nearly everyone has heard of the term “guardian”. A guardian is someone who has the legal authority to take care of a child (under the age of 18) in the event of the death of their parents or carer.
If you are looking to write your Will and you have any children, or care for any children, under the age of 18, it is strongly recommended that you think of appointing guardian(s) in your Will. You can of appoint more than one, but it is wise to know that they will be able to agree on what is best for the child / children.
As a parent or carer, you may never have to consider this, but it’s prudent to make provisions for minor children now, so you know they will still be loved and well cared for by someone you trust if you do pass away.
Deciding who to appoint as guardian(s) is without doubt one of the most important decisions as a parent that you will have to make and can be quite an overwhelming task. We wanted to put together some guidance, which should make the process of appointment a guardian(s) as easy as possible:
What is the role of a guardian?
A guardian will have overall responsibility for the child including:-
- their education
- emotional and financial support to the child
- providing accommodation
- general maintenance i.e. clothes and food
It is advisable to talk it through with your chosen guardian(s) and let them know your wishes before you add them in your will.
Important things to consider:
There are some factors for you to consider in order to make the best possible choice for your child / children:
Location – does the guardian live nearby? If not, your child will be moved away from their school and friends which is all familiar territory to them and their “safe place.”
Other children – does your guardian have other children and will they able to raise another child?
Stability – it is important that your children become part of a stable family environment, both financially and emotionally.
Familiarity – does your child know and like the guardian? Does the personality of your guardian make for a compatible fit with your child / children?
Values – are there any cultural or religious values you’d like your children to be raised with? Does your guardian share the same values?
Capacity – does your guardian have the mental and physical ability to raise the children?
Can I leave money to my appointed guardian in my Will?
Yes, you can. You can include this as a money gift in the will, which will enable you to specify that the gift is conditional on them acting as a guardian. However, there is no guarantee that the guardians will use it towards the children’s maintenance.
Alternatively, if assets are being left to the children, the trustees can use the trust income and capital towards the children’s maintenance and benefit. The trustees could do this either by using trust assets directly for the children’s benefit, or alternatively by transferring income or capital to the child’s parent or guardian whilst they are a minor or to the child directly once they are no longer a minor.
What happens if you do not appoint a guardian(s)?
The Courts may appoint a guardian for your children. There may well be a feud between the family as to who looks after your children or worse still, your children may be placed into care.
I’m sure we can all agree that this is not a viable solution and therefore it is advisable to make provisions in your will now for appointing a guardian(s). This will leave you safe in the knowledge that your children will be well looked after and supported should anything happen in the future.
Kimberley Leigh – Consultant Solicitor
8th July 2020