A key decision that parents often have to make when drawing up new Wills is the question of who should be appointed as the guardian of their child or children in the unlikely event that both parents pass away before a child turns 18.
What do guardians do and why it is important?
A guardian steps into the shoes of the deceased parents and takes on legal parental responsibility to make decisions about the care and upbringing of that child until the age of 18. It is a way of giving parents the peace of mind that the child will be looked after properly by someone they trust.
It can be one of the most difficult decisions to make and reach agreement on in terms of who is the most suitable choice.
It is vital to ensure that the guardian is an individual or a couple living at the same address appointed as joint guardians. It is also important to ensure that the appoint of a guardian is the same in the Wills of both parents because the provision only comes into effect on the death of the survivor.
In the absence of any guardian appointment or ambiguity (for example, an informal wish for X and Y to decide who is best placed to act as guardian) then the court will need to be involved to make an appointment. This is likely to involve additional stress at what is a difficult time anyway, and is best avoided.
What to consider when appointing a guardian
Some considerations to bear in mind are as follows:
- The interaction between the guardian and the executors/trustees of the Will. The guardian(s) can be the executors/trustees or one of the latter. If the individuals are different then ensuring they will be able to work together effectively for the benefit of the child or children is vitally important.
- More complex appointments can be made. It is possible to put in place conditions that a guardian must meet and, if not, to then provide for a substitute guardian to be appointed instead. By way of example, a condition that the potential guardian is residing in England on the death of the second parent.
- Appointing a substitute guardian in the Will is often a sensible consideration in case the first-choice guardian dies, loses mental capacity or does not accept the appointment. However, it is not possible to appoint successor guardians in the event the appointment of the original guardian takes effect but then dies, loses mental capacity or ceases to meet a specified condition in the Will.
- The appointed guardian does not have any obligation to support the child from their own resources and usually, the Will should provide that following the death of both parents, sufficient funds are held on trust for the benefit of the child or children. It is possible for the parents to write a letter of wishes making clear how they would like the trustees to use their powers under the will to provide financial support for their child through the guardian and the guardian must give receipts on behalf of that child. Is there an intention for the guardian to be able to benefit more widely? For example, if the guardian needs to move to a bigger house or buy a larger car then having the ability to benefit the guardians directly under a trust might be helpful. Care is required here.
- The appointment of a guardian is not necessarily one that needs to be decided at the point of making a Will (even though it is highly advisable). In the event the parents cannot agree on the guardian for their child or children, it can be dealt with later in a separate document to avoid undue delay in ensuring the Wills are completed.
How can Moore Barlow help?
As outlined above, appointing guardians can be a difficult decision with several considerations. We would be pleased to guide you in this area so that you have peace of mind.
If you require expert legal advice on this topic and your Wills then please contact the Private Wealth Team.