It is important that those of us with minor children make adequate provision for our children when we are not here. This means not only that we have wills in place to direct our estate to the right people but also that we ensure that somebody is appointed to look after our children when we are gone.
The term ‘guardian’ usually refers to somebody appointed in a will to look after minor children. However, an appointment of a guardian will not take effect unless everybody with parental responsibility for a child has either died or had their parental responsibility revoked by the court.
The following categories of people automatically have parental responsibility:
- The mother of a child
- A father named on the birth certificate of a child born after 1st December 2003
- A father married to the mother of their children (whether or not named on the birth certificate)
- A person who is granted parental responsibility by the court (including adoptive parents)
- A person who enters into a parental responsibility agreement
Therefore should a testator with Parental Responsibility die then any appointment they make will be conditional upon there being nobody else living who fulfils the conditions above.
It is impossible for us to know who, if anyone, is going to survive us and it is therefore imperative that parents make a suitable provision in their wills to appoint guardians of their minor children. Amongst the things to consider are:
- Who the guardians are to be: it is recommended that guardians are people who are likely to be around whilst the children are still minors (and are active enough to manage youngsters!). It is also helpful to ensure continuity of education and locality.
- It is not advisable that guardians are also trustees, as the trustees will be in a position to advance money from the estate to the children and their guardians prior to the children coming of age.
- Are the guardians equipped to look after children? Is their house large enough? If not, the parents may consider making a specific financial provision for the guardians to enable them to extend their house or move.
- The age of the children: If the children are 3 and 5 then they cannot really give their views on where they live and who they live with. However, if they are 15 and 17 then guardianship provisions are not particularly relevant as teenagers tend to vote with their feet!
- To keep the provisions under review as circumstances change.
It is also worth pointing out that granting somebody ‘Parental Responsibility’ does not necessarily mean that the child or children will live with that person. It is open to other people to apply for the usual range of Court orders such as Residence orders, Special Guardianship Orders or Contact Orders if necessary where they feel that they would be better placed to take on the role of looking after the children. The needs of the children are considered paramount by the court when hearing such an application.
If you are considering making or changing your Will and require assistance, please contact Tom McInerney, Solicitor in our Private Capital Department on 01295 204012 or email Tom at firstname.lastname@example.org