April 2010
If your children are under the age of 18, it is very important that you consider who might take care of them in a worst case scenario. A child’s surviving parent is normally automatically guardian on the death of one parent (providing the surviving parent has “parental responsibility” under the Children Act 1989 – see below).
Whilst it is extremely unlikely both parents would die at the same time; nevertheless a tragedy can occur and it is wise that parents should have a plan in place. Your children’s guardian would be responsible for your children’s upbringing in the event of both parents not surviving.
The appointment of guardians is governed by the Children Act 1989 - the documentary formalities required for any such appointment are usually incorporated within a Will rather than by separate provision. Accordingly, parents who are considering making Wills (which should be mandatory if you have “infant children”- viz children under 18 years of age) can appoint a guardian, under each respective spouse’s Will, but the appointment (or responsibilities) of a guardian to your children would not come into effect until the death of a surviving parent.
In regard to Wills of the parents it should be remembered that Wills cannot be made jointly – each parent (assuming they have testamentary capacity) must make their own Will although, between each spouse, they may contain similar “mirror” provisions.
How do you choose guardians?
A guardian will have to assume responsibility for decisions affecting your children’s daily care and welfare - the guardian does not automatically assume such welfare responsibilities – thus it is imperative that you seek consent before appointing an individual as guardian.
The decision, as to whom you choose to appoint as guardian/s, requires particular care and attention; their responsibility towards the future welfare of your children is sacrosanct.
The following are illustrative of the issues involved:
• Physically and financially able to take on such responsibility (and to continue to do so until your child attains 18 years) – the latter may preclude grandparents because of age or infirmity.
• Such individuals must be capable of providing stability and support; together with general “well being” – these are factors which your children will need throughout their lives.
• Ideally such individuals should have the same values as you and should be capable of maintaining relationships with the children’s wider family and social network.
• The individual/s you choose must understand what would be involved and be in agreement with you; make sure that such a person is both aware and content with your requirements towards the welfare of your children.
• It is sensible to advise your immediate family of your decision and choice of guardian/s.
Terms as to financial provision (for the children’s future welfare, education and maintenance etc) can be incorporated within the guardianship clause within the Will/s of the parent/s.
Perhaps the above considerations could best be summarised as:
‘the ability to choose a guardian who is someone of your choice as a parental voice in decisions that will affect your infant child’s future.’
Future needs - you may feel that the individual/s nominated as guardian/s may not be appropriate anymore because either their, or your own circumstances, have changed and such individual/s may be unable to look after your children. In such circumstances you should amend your Will/s to reflect this change.
Next month- who has “parental responsibility”: there are legal issues to determine this when couples start a family without being married.
Andrew Murdoch
(ACIB, AIFP, Dip PFS, TEP, Solicitor)
