Nobody likes to think that they will not always be there to take care of their children. But it is extremely important to plan for that eventuality. Children under 18 have to have someone with parental responsibility for them. This is the law and is not an 'option'. If it is not the parents, or one of them, then 'some other person' will instead be appointed as the child’s Guardian.

The most ideal place to cover who you would wish to act as the Guardian for your children in the event of you passing away before they are 18, is to include a 'guardianship clause' in your Will. It is generally advisable to appoint an individual as opposed to a couple just in case that 'couple' do separate/ or perhaps have vastly different parenting opinions' which could cause issues in the care of your children, in particular where they live and are educated for instance.

You can then also appoint a substitute Guardian in the event they cannot act for whatever reason.

If you do not include the guardianship clause and there is no surviving person with automatic parental responsibility for your children (e.g. mother/ father) your children will be placed into the formal care of the local authority until it is considered and explored who a suitable other guardian would be, if anyone. Hence, the absolute importance of covering this in your Will.

Sometimes, you may also wish to consider a 'temporary guardian' to look after your children immediately should anything happen to you, where for instance the subsequent or long term plan is for them to relocate abroad to other family members. Again, the best way of covering this is within your Will and potentially a Letter of Wishes to accompany that.

But that is not the end of the matter. There are important situations when the Will does not have the final word on Guardianship of children.

A Guardian does not wish to act

There are various reasons why an appointed Guardian might not wish to act when the time comes to do so. Hence, why it is also so important to discuss any potential appointment with them. For example:

  • they have simply changed their mind;

  • they have had their own children since the Will was made;

  • when they were appointed they were a couple, but are no longer together;

  • they have moved away, perhaps overseas; and to re-locate would not be appropriate or in the best interests of the children;

  • they have become ill or disabled; or

  • they have responsibility as a carer for someone who is ill or disabled.

A person cannot be forced to act as Guardian. So just because your Will names a person as Guardian, it does not mean that that person has to accept the responsibility. If they are choosing to step down, they can disclaim the role. This again may result in the same situation as above where the children are then placed in the care of the local authority.

The appointment does not take effect

Obviously there may be circumstances where a Guardian you have appointed in your Will is not able to act, or the appointment is of no effect. For example:

  • the named Guardian has died before you, but you do not amend your Will accordingly;

  • they cannot be traced, or are serving a prison sentence;

  • your children have reached the age of 18;

  • someone else is appointed by the court; or

  • there is someone else with parental responsibility.

Someone else with parental responsibility

If a child’s parents are not together – whether they have separated or divorced – both parents still usually have parental responsibility (unless the court has ordered otherwise).

This means that on the death of the parent that the child lives with, their other parent will usually take over the care of the child, even if the deceased parent has nominated someone else as Guardian. In other words, the appointment of a Guardian in a Will does not override the parental responsibility of a parent.

The court will always treat the welfare of the child as paramount. It is important to discuss this carefully when including the guardianship clause in the Will so all are clear what can and would potentially happen on death.

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