Guardianship – The Most Important Reason of All

“ ‘What is a Will?’ I asked her.

‘It is something you write before you die’ she said.  ‘And in it you say who is going to have your money and your property.  But most important of all, it says who is going to look after your child if both the mother and father are dead.’

Roald Dahl, The Witches.

Perhaps the hardest thing for any parent to think about when making a will is guardianship.  It’s really difficult, and really upsetting, to imagine not being there for your children as they grow up.  I know, because I’ve had to go through the process myself, and I’ve seen countless other parents agonising over the same decision in my own practice.

The reality is that over 23,000 parents die each year in the UK leaving dependent children behind, and around one in twenty young people have lost one or both parents by the age of 16 (according to 2015 statistics from the Childhood Bereavement Network).  That’s at least one child in each classroom of GCSE students.

If there is nobody left with parental responsibility for your children, and you have not appointed guardians, it is likely that the family courts will need to decide who your children will live with. Although they will make their decision based on what they perceive to be in the child’s best interests, and will gather as much information as they can to make an informed decision about that, inevitably the court officials will not know your children like you know them.  

I would like to make sure that every parent gets the chance to decide who will look after their children.   You can start by following these three simple steps:

  1. Have the conversation.

I want to gently encourage you to have a conversation with your spouse/partner and, if they are old enough, your children, about who might look after them if you aren’t there.  I read ‘The Witches’ to my six year old this summer, and we were both surprised to stumble across a passage about who looks after a child ‘if both the mother and father are dead’.  Typical Roald Dahl, I thought! Slightly gruesome and very direct!  I inwardly braced myself for some very awkward questions. But the surprising, and wonderful, thing was that it sparked a conversation between my daughter and I.  It was gentle, it didn’t scare her, and it was honest.  I now know more about where she would like to live, who she would like to see, and what would be important to her if my husband and I weren’t here to look after her.

Use the conversation starters below to help with your own discussions:

Who Should we Choose?

This is the big question!  First, have a conversation with your family and perhaps some trusted friends.  A few names will hopefully come up!  Often you might think of grandparents, aunts / uncles, godparents or close family friends.  Potential guardians should of course be people who love your children unconditionally, and who you trust implicitly.  But think as well about the practicalities.  Do your guardians live locally?  If not, how would you feel about your children moving schools and away from friends to live with them? Would your potential guardians be in a position to move nearer to your children?  Are your potential guardians able, physically and mentally, to care for your children?  What caring responsibilities do they already have? Does your child have any medical or other needs and will your potential guardians have the resources to deal with these? These are all really important considerations to bottom out before finalising your choice. 

When do we tell the guardians?

Whilst the appointed guardians don’t legally need to be informed that they have been chosen, I strongly recommend including them in the conversations right from the outset. You will want to make sure they are happy to take on your children, and what needs they might have (financial or otherwise) to enable them to act.  They are an essential part of the conversation!

Do we need to leave money to the guardians?

There is no legal obligation to leave a financial gift to your children’s guardians.  But you will need to think about whether the guardians will be in a position to look after your children and give everyone a happy, healthy home life; money will therefore usually be a factor.  The last thing you would want is for an otherwise ideal guardianship to break down because of financial pressure that could have been avoided with some simple planning.

If your estate is left to your children, some money will usually be able to be released from their inheritance whilst they are still minors (under 18) to pay for their maintenance and education.  So the guardians will be able to get some support for things like schooling.  However, consider the financial position of the potential guardians.  Would they need to buy a bigger car, or move house, for example, if your children lived with them?  There are various options to consider to ensure the appointed guardians are best-placed financially to take on your children.  These range from leaving a one-off cash gift, to using a trust with full flexibility to release some sums to guardians.  Insurance policies might also be a good option in some cases. 

What if we have separated?

If you are separated or divorced but both parents continue to have parental responsibility, then if one parent dies the other would automatically have responsibility for any minor child.  Although it is less likely if you do not live / travel together, it is of course still possible that both parents could die.  If the parents have appointed different guardians, then it may come down to the family courts to choose which of those guardians should act.  Therefore, even if it is difficult, I always strongly recommend having a conversation with your former partner,  and agreeing on mutual guardians if at all possible.

  • Appoint your guardians. 

This is the easy part! It can be done through a letter of guardianship or, more commonly, by making a straightforward will.  Our wills start from just £180 for both parents, if you use our 10% discount!

I also always encourage parents to make a letter of wishes outlining how they want their children to be looked after, educated, participate in their community,  and so on – essentially summarising the conversations you have had in step 1.  A letter of wishes will not be legally binding,  but will be a written record of your thoughts and hopes; as such it can be invaluable to both the guardians and your children.

  • Review your guardians. 

Things change.  Potential guardians may move, or their own circumstances may alter.  Your children will also develop different needs.  My eldest child started secondary school this year, for example, and it is therefore now more important to us that she should be able to stay in her current school and close to her friends, if she wishes.  I suggest reviewing your guardians every three years, or whenever there is a significant change in circumstance. 

The more I think about it, the more I think that Roald Dahl had the right idea.  We need to get these uncomfortable ideas into the everyday, into the books we all read to our children, into conversations at the dinner table.  Children are often much more resilient than we expect, and they want their voices to be heard. 

Your children can’t make a will, but you can.   So if you don’t make a will for any other reason, do it for the most important one of all – to give your children a voice and to safeguard their future.

Post Date | March 25, 2022
Post Author | Ruth Pannell
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