Why it’s important to appoint a parental guardian
Posted on 23rd November 2019
If you and your partner have a young child or you are considering starting a family, imagine what would happen if you both died.
It’s a subject that most of us don’t want to think about. However, you can appoint a parental guardian in your Will and make financial arrangements to support your child.
Including arrangements for your child in your Will can be especially important if you and your partner have different nationalities. You can include where would want your child to grow up in your Will.
In case the person you choose as a guardian is unable to take on the role for any reason you can also appoint a backup.
Why appoint a parental guardian for your children?
While you might like to think that grandparents, aunts and uncles will be responsible for your children, if you haven’t appointed a parental guardian, the decision will actually be made by the Family Courts.
It’s important to understand the difference between a parental guardian for your child and someone who cares for them.
A guardian with parental responsibility (PR) - this person has the rights, duties, powers, and responsibilities of a child’s parent.
Someone in a position of care - in this role someone is expected to do what is reasonable to safeguard and promote a child’s welfare but they won’t have any legal rights.
A parental guardian will only need to step into the role after your death or, if there is a surviving parent with PR, if they also die.
A formal written arrangement between you and the guardian is needed which must be dated, signed by you and the guardian and witnessed. This can be done as part of your Will, although it can also be in a separate document.
Things to consider about parental guardianship
It’s important that you don’t make assumptions. There are some important things to think about, for example:
A surviving parent – ideally you and your partner will be in full agreement about who should have PR if you die. Your child’s surviving parent can appoint a new guardian if the guardian you appointed agrees that it is in your child’s best interests. However, if they can’t agree, the Family Court will need to make a decision.
A parent without PR – in cases where parents are unmarried or a stepparent doesn’t have PR, only the parent with PR can choose a guardian. A parent without PR can obtain it by completing a form that must be signed and witnessed in Court. Then guardianship will only come into effect if both parents die.
Guardians unable to take on the role – if you put arrangements in place when your child is born and the guardian you appointed, or any backup you named, has passed away, is ill or unwilling to take on responsibility for your child, the Family Court will make a decision. For this reason, it’s a good idea to review your arrangements regularly until your child is over 18.
Letters of wishes
Because there are so many possibilities to think about until your child reaches the age of 18, it’s important to think carefully about the arrangements you make and who you appoint. You can provide ‘letters of wishes’ to tell your chosen guardians about any specific arrangements you would like them to make.
For example, you might feel strongly that you want your child to be brought up by a married couple. If the couple you choose divorce after your death, your letter might say that you want them to apply to the Court to bring their guardianship to an end.
You can also provide a letter of wishes for the trustees of a Trust fund you have set up, outlining how you would like your child to be supported financially.
You will want to support your child’s guardian financially, so the inheritance section of the Will should reflect your wishes clearly. If both parents die at the same time the estate can be held in Trust and the trustees can make payments to the guardian so that they can support your child.
The guardian could also be a beneficiary of your Will to allow them to extend their home or move so that they have enough room for your child.
We will be happy to give you advice about the relevant issues concerning guardianship and financial support for your child, if you and your partner die. Please get in touch.
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