During her career as a specialist in Wills, Trusts and Estate Planning, Kathryn Beresford has seen how important it is for parents to consider what would happen to their children if they were no longer around to look after them. Though challenging and difficult to think about, Kathryn shares her knowledge and experience in conversations about ‘Guardianship’.
When you hear the word Guardian what do you think about? One definition is “a person who protects or defends”.
Most parents want to protect their children, but who will provide that care and support if you die and you leave behind a child or children who are under the age of 18?
A mother automatically has parental responsibility for her child from birth, and a father who is married to or is in a civil partnership with the mother also automatically has parental responsibility. If a child is born after 1/12/03 the unmarried father will automatically have parental responsibility if they are named on the birth certificate.
It is often therefore in a situation where both parents with parental responsibility (or the only parent) dies when a Guardian is appointed. One way to communicate your wishes about the person(s) you would like to act as Guardian(s) is by naming them in your Will. The Guardian(s) could apply for a Child Arrangement Order (or a Special Guardianship Order) stating with whom the child or children should live. If you do not appoint Guardian(s) in a Will or by other statement, a Court will decide who will look after them on your death if they are under the age of 18. This might not be someone that you would have chosen. Our experienced colleagues in our Family Law Department can provide advice in relation to the different application processes available to extended family members.
A letter of wishes can also be very helpful for the Guardian(s) to refer to as you can include information, for example, as to how you would wish your child or children to be educated, and even include such detail as their likes and dislikes. One tragic situation I recall was when both parents died in an accident leaving behind a very young daughter. They had fortunately appointed Guardians in their Wills. In the early days following their deaths, the child understandably would not settle to sleep. On going through the parents paperwork, as the Guardians were also the Executors of the Wills, they found a letter of wishes addressed to them. Within that letter the parents had included that their daughter slept with a particular cuddly toy. That toy was found and this gave comfort to their child at night. That letter was therefore invaluable.
If you have any questions relating to appointing Guardians in your Will please contact our Wills, Trusts and Estate Planning Department. We will help you gain peace of mind.
