It’s a familiar story in the movies – parents die in tragic circumstances and leave the care of their young children to totally unsuitable family members with hilarious consequences.
In reality, however, many people do not consider the question of who would look after their dependent children if they are unable to do so and this can lead to unnecessary complications during an already emotional situation.
If you suddenly were to pass away and you have no Will, or no guardian is named in your Will, then a family member could make an application to be appointed by the court – With that comes the possibility of a custody battle, where a Judge will choose a guardian based on the best interests of the child. If no one makes such an application, social services might place the children into temporary foster care until a more permanent solution can be found.
The best way to ensure your children are taken care of by someone you choose and trust is to make a Will and place a guardianship clause in it. This clause in your Will legally appoints your chosen guardian to take immediate charge of your children if both parents die.
Guardians are legally responsible for your children until they reach 18 years. They will need to provide a home and daily care, making any decisions regarding your children’s education, health and general upbringing.
Consider the geographical location – it may be helpful for your children to remain at the same schools, so they can avoid even more upheaval in their lives. It may be beneficial for them to live near to family members who you are not naming as guardians, such as grandparents.
Take the age of guardians into account – grandparents are an obvious choice for guardianship, but be cautious if they’re quite old. You will need to consider their health as well as your children’s.
Once you have someone in mind, sit down with them to find out if it’s something they would even consider. It’s a huge responsibility and you don’t want to surprise someone if this clause is needed.
Review your choice – if, after a few years, you wonder if you made the best choice, relationships have changed, or your children have become closer to other friends and relatives as they grow then consider altering this clause.
When you pass away, you not only need a guardian to care for your children, but also an Executor to handle your estate. This can be the same person, but it’s something that should be considered carefully. Your Executor may be excellent at handling money but have no experience of raising small children (or teenagers!).
These roles have very different goals and it doesn’t hurt to have two people looking after things, the important consideration here is to be very sure they will get along and work together.
As in all aspects of making or reviewing your Will, appointing a guardian for child custody should be done with serious consideration and care. We understand that it can be a confusing and intimidating task, so we’ve addressed the most commonly asked questions about Wills in video form; after watching it, you can make your next move with a better understanding.
Our Wills & Probate team are happy to offer assistance in making or reviewing your Will, so you can ensure you don’t miss anything important in securing a safer future for your family. Please take a look at our services to learn more about what we can do to help you organise your Will and appoint a Guardian.
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