Guardianship: what every parent needs to know about protecting their minor children

Mother holding a hand of her daughter, closeup

It starts with a  question.  That question is:  are you happy with what would happen to your minor children if you and your spouse or partner both died?  If the answer comes in the form of more questions or guilty discomfort, please read on.

Death of a parent

No-one knows exactly how many children aged under 18 lose a parent each year, let alone both parents.  However, it is estimated that every 30 minutes of each day, a child under the age of 16 in the UK is bereaved of a parent (Winston’s Wish).

If you are a parent of minor children, then you might be interested to have more information about what would happen to your children if both parents died and the steps you can take to get the outcome you would prefer if the worst were to happen.

Current law

The position is broadly that where both parents die without appointing a guardian for their minor children, then those bereaved children become the responsibility of the Court.  Until the Court appoints a guardian, the children might be taken into care.

Where a guardian has been appointed, responsibility for the children’s care is able to pass immediately on the death of the last surviving parent to that guardian.  The guardian is likely to be an individual who has previously agreed to act as guardian and who the child knows and trusts.

Legal complications and the turmoil of uncertainty can be quite straightforwardly avoided by appointing a guardian.

Appointing a guardian for your minor children

A parent with parental responsibility (see further below) can appoint a guardian for his or her children in their Will or by making a document, which they date, sign, and which provides that the appointment only takes effect on their death. 

While a Will is not strictly necessary to appoint a guardian, it is far preferable, if there is time, to consider the appointment of a guardian as part of making your Will, when other matters directly relevant to the guardianship of your children should also be considered (see further below).

You can appoint more than one guardian and/or a substitute guardian or guardians.  Parents can appoint separate guardians but for obvious reasons they should ideally consult each other and appoint the same person or persons. 

By choosing to appoint guardians now, you will also have the benefit of being able to discuss this with your chosen guardians, your family (to clarify your wishes and help avoid later disputes about who should care for the children) and you could also discuss the matter with your children, if you feel it is appropriate.

You should also be aware that your chosen guardians are authorised to appoint replacement guardians for your children, in their own Wills.  Whether you consider this is a positive or negative aspect, it is obviously something to take into consideration when thinking about and discussing the guardianship of your children.

Your Will, trusteeship and guardianship – consider with care

If you make a Will, then you will name trustees as well as guardians. The trustees, by and large, will be responsible for looking after your money and assets on behalf of your children until they reach the age at which you have said they can have your estate outright. In the absence of any other direction in your Will (or if you don’t make a Will), your children will be able to have the money and assets held by the trustees when 18.

The obvious consideration is that while your chosen trustees look after your money, your chosen guardians will be living with and caring for your children.  Often, your trustees will include the person or persons you chose to be the guardian or guardians, but sometimes it is preferable for those who control your wealth for your children’s benefit to be different to the people who actually live with and care for your children.

Your Will could include a request for your trustees to pay money directly to your guardian if there is a need for the guardian to enlarge his or her house to accommodate any of your children, or perhaps to move house altogether. It is possible that the guardian(s) will require other financial assistance whether directly or indirectly, to enable them to look after your children in the manner you would wish.

We recommend that your Will is accompanied by a letter to your trustees, about how you would like them to use the money for your children’s benefit, and your chosen guardian(s), regarding the care, education, discipline, religious and general upbringing of your children. The current relationships between your chosen trustees, guardians and your children is important and often under-explored.

Parental responsibility

This is defined as ‘all rights, duties, powers, responsibilities and authority, which by law a parent of a child has in relation to the child and his [or her] property’.  This is wide ranging and obviously carries significant authority and responsibility. 

Not all parents will have parental responsibility and therefore be able to appoint guardians for their minor children.  The basic position is that if the mother and father are married at the time a child is born, then both will have parental responsibility.  However, if the father and mother were unmarried, only the mother will have automatic parental responsibility.  The father can acquire parental responsibility if (i) he marries the mother (ii) he becomes registered as the child’s father; (iii) he and the mother make a ‘parental responsibility agreement’; or (iv) the court, on his application, orders that he shall have parental responsibility for the child.

For more information about parental responsibility, the following link is to the government website, which is helpful.

https://www.gov.uk/parental-rights-responsibilities/what-is-parental-responsibility

For more information about supporting bereaved children, the following website is very helpful.

http://www.childhoodbereavementnetwork.org.uk/

Posted on March 18, 2016 in Knowledge

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