Although it is never easy contemplating what will happen to your children if the worst should happen when making a Will but it’s also natural as you write your Will to consider the future and that of your children. Their security, their well being as they grow up and how their finances will be managed are issues we take for granted as parents – but when making a Will and thinking about “what if neither of us is around to make those decisions“ and who will or should in our absence is worth considering, appointing a guardian or guardians in your Will is an important decision.
So What is a guardian?
A guardian is a person who has legal responsibility for a child in the absence of their parents. Guardians are appointed for children when the parents are deceased to look after their well being and can be given responsibility for specific matters. It is possible when making a Will to ensure certain things like financial matters and school fees etc are looked after by professionals.
Choosing a guardian
There are many things to consider when choosing a guardian. This is the person who will be parenting your children. So, a guardian will make decisions about your children's health, schooling and moral training. Some things to consider before approaching someone to possibly be named as a guardian in your Will include:
• Is this person responsible and up to the challenge of raising my children?
• Is the person a responsible adult, who is 18 and over?
• Is the persons home near to the child’s current home or is there a long distance to be relocated to?
• What is the person's home situation? Is the potential guardian in a stable relationship?
• Are the people from the same religious background?
• What is the persons current financial situation?
Once you select someone to name as a guardian, it is important to discuss it with him or her. While most people are flattered, some are unwilling to accept the responsibility or have previously unknown reasons for which they might be unable to take on the role. It is also wise to consider appointing an alternate guardian.
It is also worth remembering that the person you might want to act as guardian when the children are very young may not be the same person as they get older and of course you can always change or amend the Will you have both made at any time as circumstances and the children get older.
What happens if I do not appoint a guardian?
The first thing you must do is to begin making a Will, if both parents are alive then both of you must make a joint Will that hopefully mirrors each other in respect of the children. If you do not appoint a guardian when making a Will and the Will is called upon whilst the children are still considered to be “minors” in age i.e under 18 years old then matters can be complex particularly if there is a large estate to distribute.
If you should die without making a Will and fail to designate a guardian, the courts will decide who takes care for your “minor” children. The decision may be OK but will never be exactly as you would have wished. The court system does not know your children and can't have an understanding of your wishes for them without stating who you want to be guardians in your Will or you leave a legally binding guardianship document.
Forms to appoint legal guardians in accordance with section 5 of the Children Act 1989 are easy to obtain and can be completed and held in addition or alongside your Will.
If you have “minor” children at the point you are writing your Will naming a guardian for them is one of the most important considerations that as parents you will probably discuss with each other when making a Will. You can always change your Will later to suit the childrens needs as they get older and it is often considered good practice to name a minimum of 2 guardians and maybe 2 substitute guardians.
More than likely a will is perhaps the most important legal document the average person will ever sign. Without one, the courts—and not you—decide what happens to your assets. They can even decide what happens to your children.