Sarah White, of the Thompson Smith and Puxon (TSP) Wills and Estates team, discusses appointing guardians for your children in your Will.
A legal guardian is a person appointed in your Will to look after any of your children that are under 18 when you die and for whom nobody who survives you has parental responsibility. A guardian can be just one person; however, it is common to appoint a couple. You may also wish to consider appointing replacement guardians in the event that your chosen guardians are unable or unwilling to act.
If children under the age of 18 have nobody who has responsibility for them the Courts may need to appoint a guardian. Whilst the Courts have a duty to act in the best interests of your children they will only have the information available to them at the time. This may mean that the person you would have wanted as a guardian will not be appointed.
Taking on the role of being a guardian is a huge responsibility. It is therefore recommended that before you appoint guardians you discuss the matter with the person/people you are considering to check that they are willing and able to take on the responsibility.
You will also need to consider the practicalities of the guardian looking after your children such as where will they all live and how this will be paid for, will your children be able to continue at the same schools, what attitude will the guardians have to children who are over 18 but not yet financially independent, and so on.
You should consider placing a letter of wishes with your Will setting out your reasons for appointing the particular guardian and your instructions for the care of your children. This will give the guardians some assistance when making decisions and the letter can easily be reviewed or changed by you as your children grow up and their needs change. In addition, if anyone challenged the appointment of your guardians the letter could be used in Court as evidence of your reasons for appointing them.
This article is just a general overview. Each case depends on its own specific facts and there are a lot of issues to consider. TSP can advise you further on these issues and help you to decide how you wish to proceed.