Choosing guardians for children in a Will is something many parents put off, often because it involves thinking about circumstances they would rather not imagine. Most have an idea of who they would want to look after their children if something happened to them, but that conversation may never have taken place with the people involved.
Often, though, the conversation goes no further than that. The people involved may never have been asked, and nothing has been put in writing.
When parents make their Wills, much of the discussion understandably centres on their home, savings and who should inherit their estate. For anyone with children under 18, there is another important decision to make: who would take responsibility for them if their parents were no longer there?
In England and Wales, parents with parental responsibility can appoint guardians to act following their death. There are, however, some important points to understand about when those appointments take effect.
Appointing a guardian in your Will
A guardian is someone who can take legal responsibility for a child following the death of a parent, where the relevant legal conditions are met.
Under the Children Act 1989, a parent with parental responsibility can appoint someone to act as a guardian after their death. This is commonly done through a Will, although the law also allows appointments to be made in a separate document that meets the required formalities.
The appointment allows parents to express their choice of who should take responsibility for their children, rather than leaving that decision entirely unresolved.
It is sensible for both parents to consider making appointments in their respective Wills, particularly where they share parental responsibility and want the same people to look after their children if neither parent survives.
What happens if one parent dies?
A guardian named in a Will does not necessarily take over responsibility for a child as soon as the person who made the Will dies.
Where another parent survives and has parental responsibility, that parent will generally continue to exercise it. In the usual circumstances, the guardian’s appointment will not take effect while that surviving parent retains parental responsibility.
There are exceptions, including certain situations involving child arrangements orders, so families with existing court orders should obtain advice about their particular circumstances.
This can be especially relevant for separated parents.
Someone may want a new partner, their own parents or another relative to care for their child if they die. However, naming that person as guardian does not ordinarily override the parental responsibility of a surviving parent.
Parents should understand this before making an appointment, particularly where relationships within the family are difficult.
What if both parents die?
If neither parent with parental responsibility survives, an appointment made through a Will can provide a clear legal basis for the chosen guardian to take responsibility.
Without an effective appointment, someone may need to apply to the court for the appropriate legal authority to care for the child.
Family members might agree among themselves about who should help, but practical arrangements and legal responsibility are not always the same thing.
Having guardians appointed in advance can reduce uncertainty at an already difficult time. It also gives parents the opportunity to choose someone who understands their family and whom they believe would provide a suitable home for their children.
The appointment should be properly drafted, particularly where parents want to name more than one guardian or provide alternatives if their first choice cannot act.
Who should you choose as a guardian?
There is no requirement to choose a grandparent or another close relative. Parents can appoint someone they trust, provided that person is suitable and willing to accept the responsibility.
Grandparents are often an obvious choice because they already have a close relationship with the children. Their age and circumstances are worth considering, though, especially where the children are very young.
A brother, sister or close friend may be another option.
It is worth thinking about the practical reality of the arrangement. Someone who would be wonderful at looking after the children for a weekend may not necessarily be in a position to take responsibility for raising them.
The guardian’s own family circumstances, where they live and whether the children would need to move schools are all matters parents may want to discuss.
There is also the question of whether siblings would remain together. Most parents would want this, but it is worth having a proper conversation with the people they intend to appoint.
Should you ask someone before naming them?
Yes. Although someone can be named in a Will without having formally agreed beforehand, it is much better to discuss the responsibility with them.
Being asked to raise somebody else’s children is an enormous commitment. The person may be willing in principle but have concerns about their finances, accommodation or existing responsibilities.
A conversation gives everyone the opportunity to consider those issues.
It is also worth reviewing the choice as circumstances change. Someone who was well placed to care for two young children ten years ago may now have different responsibilities or live much further away.
Parents can name replacement guardians in their Wills so there is an alternative if their preferred person has died or cannot take on the role.
Who would pay for the children’s upbringing?
This is a separate consideration from deciding who should look after them.
Appointing a guardian does not automatically mean that the guardian inherits the parents’ estate or that the children’s inheritance becomes the guardian’s personal money.
Parents can make financial provision for their children through their Wills. Where children are too young to receive an inheritance outright, trustees may be responsible for managing the money until the children become entitled to it.
Depending on the wording of the Will, trustees may be able to use funds for the children’s maintenance, education and general welfare.
The guardian and trustee do not have to be the same person. In some families it makes sense for them to work together, with the guardian responsible for the children’s day-to-day care and the trustees managing the money intended for their benefit.
Where substantial assets or complicated family circumstances are involved, the arrangements deserve particular attention.
Life insurance may also be worth reviewing, especially where parents want to ensure that money would be available to help support their children.
Can grandparents automatically take responsibility?
Grandparents often play a significant part in their grandchildren’s lives, but being a grandparent does not automatically give someone parental responsibility.
If both parents die without making effective guardian appointments, grandparents may be willing and able to care for the children, but they may need to obtain the appropriate legal authority.
The same applies to other relatives who might step in to help.
Parents sometimes assume that everyone in the family knows what they would want. Even where that is true, an informal understanding is not a substitute for making the necessary legal arrangements.
What if your children are already teenagers?
Guardianship appointments remain relevant while children are under 18, although the practical considerations may be different for a 16-year-old compared with a four-year-old.
Older children may have strong views about where they would want to live, their education and the people they feel most comfortable with. Their wishes and feelings can be relevant if decisions about their care come before a court.
Financial planning can also extend well beyond their eighteenth birthday.
Parents may wish to consider whether their children should receive their inheritance as soon as they become legally entitled to it or whether appropriate trust arrangements could provide a different approach. This requires careful drafting because simply specifying an older age in a Will does not always achieve the intended restriction.
The appropriate arrangements will depend on the family’s circumstances and the assets involved.
Making a Will when you have young children
For parents, a Will can deal with matters that go considerably further than dividing money and property.
It provides an opportunity to choose guardians, appoint suitable executors and trustees, and consider how an inheritance could be used to support children while they are growing up.
There may be circumstances in which an appointment cannot take effect as originally intended, particularly where another person has parental responsibility or a court order affects the child’s care. This is one reason it is important to understand the legal position rather than relying on assumptions about what a Will can achieve.
At AHJ Wills & Estates, we help parents and families across Sheffield, Rotherham and the surrounding areas put appropriate Wills in place.
If you have children under 18 and have not yet considered who you would want to look after them if you died, it is a conversation worth having with your family and the people you would trust with that responsibility.
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