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This article was published on May 12th, 2021
Nobody likes to think of death, particularly when you have children that you love and care for.
However, there are steps that can be taken to ensure your wishes are respected long after you’re gone.
If you have children under the age of 18 and you want them to be looked after by a specific person in the event of you or the other parent’s death it’s vital that you appoint a legal guardian in your Will.
Failing to name a legal guardian can result in the courts deciding who will care for your children.
It’s also unwise to assume that the courts will automatically grant custody of your children to your aunts, uncles or even the children’s grandparents.
Essentially, if you fail to specify who you want as the legal guardian of your children in your Will, you run the risk of your children being placed into foster care until the court appoints a guardian without any input from you.
With a potentially life-changing decision to make on behalf of your children, it’s vital you make the right one.
Whilst we understand that deciding on your child’s legal guardian is a deeply personal decision, there are a few things that most parents should take into account.
The first thing to ensure is that all your children are provided for on an individual basis in your Will.
Naming your wishes for just one child is not enough if you have multiple children. The courts will not apply the same rule for each child unless you have specifically stated so.
You should also ensure that the person you appoint as the legal guardian can handle the responsibility of looking after your children, both physically and emotionally.
If they already have children, you should consider if the two families would be able to live together.
The next point to consider is the location of your chosen guardian. Are they miles away from your children’s current home? Would moving to the legal guardian’s home result in your children leaving behind other important people in their lives or changing schools?
These questions must be considered before you make your appointment.
The children will already be going through an extremely difficult and emotionally distressing time after your passing, so it is vital that you can provide stability in their lives without removing them from their friends and family who they are close to.
Many people’s natural inclination would be to name their parents as their children’s legal guardian. However, their age and general health should be taken into account. Will they be physically capable of looking after the children?
This may not be a problem if the children are nearing adulthood, but if you have younger children who are reliant on you for food and personal hygiene etc then you should appoint a legal guardian who can cope with this.
Any parent knows that raising a child can be expensive.
Whilst shrewd estate planning can ensure your children are provided for financially, the initial financial burden on the legal guardian must be considered.
Will they be able to afford to look after your children? How big will the financial burden be on them and their own family?
In the interest of both parties, these questions should be considered before you designate a legal guardian in your Will.
Another important thing to consider is the dynamic between your children and the guardian. Don’t fall into the trap of appointing your best friend as the guardian because you are close.
Consider their values, are they the same as yours? Would they be a good parent in your absence?
Make sure you pick a guardian based on their capability of looking after your children, not only on your personal history with them.
Before you appoint a legal guardian and finalise your decision by including them in your Will, make sure both you and the person in question are happy with the decision.
Obviously, this discussion should ensure that he or she agrees to become the legal guardian should anything happen to you, but it will also help allay any fears that both you or they may have, including the aforementioned considerations.
We understand the importance of creating a Will and the responsibilities that this carries.
We want your wishes to be honoured, and your children to be protected against any dispute.
Without a Will, the way is left open for family disputes, higher inheritance tax liabilities, control from unwanted family members and the estate may not be divided in the way you had wished.
We recognise that estate planning is a vital and sometimes emotive subject. We offer you the opportunity to obtain the best legal advice to financially safeguard your family’s future.
For more information and advice, contact our team of Wills, Trust and Probate solicitors today by calling 0800 1979 345 or completing our simple online enquiry form which you can find by clicking here.
If you would like to learn more about our Probate, Lasting Power of Attorney or Estate Planning services click here.
