It is an awful thought that we might not be around to care for our children, but it is something parents should consider and make provision for.

Clive Morgan from The Will Partnership has kindly written some thoughts for this Guest Blog.  Clive can be contacted at clive.morgan@willpartnership.co.uk

Guardians for Minor Children

One of the most important reasons for making a Will is to appoint guardians for minor children. If a child is orphaned (or the death of the parent with parental responsibility occurs) the courts – as advised by Court Welfare Officers and Social Services – will determine who will raise that child. The parent’s only method of avoiding this is to appoint guardians of their choice within a Will. If clients have minor children, they should be advised to choose guardians within their Will(s) - someone to raise them in the highly unlikely event they can’t. It’s not an easy thing to consider but clients can make some simple arrangements now that will allay some of their fears, knowing that in the extremely unlikely event they can’t raise their children, they will be well cared for.

Who Makes a Suitable Guardian?

- Is the prospective guardian/s old enough? (He or she must be an adult – 18 years old)

- Do they have a genuine concern for the children’s welfare?

- Is the client’s choice physically able to handle the role?

- Does he or she have the time?

- Do they have children of an age close to that of the client’s children and do they enjoy a good relationship?

- Can the client financially provide to raise their children via their Will?  If not can the prospective guardian afford to raise them?

- Is their home large enough to accommodate an increase in family size (if not clients may retain their own home for a period of time to house guardians plus children or provide funds for the guardians to increase the size of their home or move, particularly where the clients are certain their choice of guardian is right even through the accommodation is not)?

- Does the guardian share the client’s moral beliefs?

- Are the potential guardian(s) known, liked and trusted by both parents and the children?

- Are they living local to clients so that children could stay at the same school, with the same friends and have as little upheaval as possible during what will probably be the most disturbing time of their lives?

- Have a similar age and circumstances to the client?

- Guardians are usually a relative.

- Would all the children be able to stay together?

As any minor’s daily welfare will be the responsibility of the guardians, it could be worth considering the inclusion of one of the guardians as an executor.

A good question to ask the client could be: ‘If you had an urgent problem tomorrow, who would be the first person you would call to collect your children from school or to be here at home with them until your return and why?’

Clients should name at least one primary guardian (or if the main choice is married/co-habiting then both persons should be chosen) who would act in the event of the death(s) of all persons/parents who had parental responsibility. In addition it is advisable for clients to choose substitute guardians who would act in the event that the primary guardians could not or will not act.

Legally, clients can name co-guardians, who live at different addresses but it’s not a good idea because of the possibility that the co-guardians will disagree how the children will be raised. Where this possibility arises it might be best to appoint one as primary and the other as the secondary guardian which then clarifies the position.

If parents can’t agree

Both parents should name the same person as guardian in both of their Wills. If clients don’t agree on whom to name, a court fight could ensue if both parents die while the child is a minor. Faced with conflicting wishes, a judge would have to make a choice based on the evidence of what’s in the best interests of the child.

A personal view of the writer is that almost any guardian named in a Will is a far better situation than leaving it to the courts – as advised by social services – to decide. If parents can never agree anything else between them guardians is one area where it is vital they should.

Sometimes initially each parent wants each of their own parents as guardians for often different reasons. But once you have a conversation with them about who they think the children would want to live with and who they stay with most often, the ideal solution is often one set of grandparents become the primary guardians and the other the secondary substitute guardians. We inform the guardians of their role in order for them to accept, but we do not inform them of which level of guardian they are. The client may also opt not to inform them so there can be no family arguments over a situation which hopefully will never occur.

At the first meeting when the subject of guardians comes up and agreement does not appear straight forward suggest the clients talk with the people they’d each like to name. Candid discussions with their potential guardians may bring new information to light and help them reach an agreement in time to take their instructions at meeting 2.

Choosing different guardians for different children

Most clients want their children to stay together; if they do, name the same guardian for all the children. You can, however name different guardians for different children. Parents may do this, for example, if their children are not close in age and have strong attachments to different adults outside of the immediate family. For instance, one child may spend a lot of time with a grandparent while another child may be close to an aunt and uncle. In a second or third marriage, a child from an earlier marriage may be close to a different adult than a child from the current marriage. In every situation, you want to help the clients choose the right guardian they believe would be best able to care for each child.

Choosing a different person to watch the money

Some parents name one person to be the children’s guardian and a different person to look after financial matters. Often this is because the person would be the best surrogate parent would not be the best person to handle the money. For example, a client might feel that their bother-in-law would provide the most stable, loving home for the children, but not have much faith in his abilities as a financial manager. Perhaps clients have a close friend who cares about their children and would be better at dealing with the economic aspects of bringing them up. Clients can name one as guardian, the other as executor and trustee to manage their children’s inheritance and advance money to the guardian to maintain the children or it is possible and often prudent to appoint one of the primary guardians as an executor/trustee in addition, provided there are other executors and trustees appointed who are not guardians thus maintaining some balance with no one person (or couple) controlling all the money together with the raising of the children.

Making your wishes known

Most people have strong feelings about how they want their children to be raised. Clients concerns may cover anything from religious teachings to what college they’d like a particular child to attend. One option is to write a letter to the guardian, outlining thoughts and feelings about how the children should be raised where it is ‘wished’.  Whereas if it is to be a firm direction and condition/requirement of the guardian, then it needs to be mentioned within the Will. It is always best to be brief – without too much detail – as it could cause the guardian guilt and frustration, if unexpected circumstances thwart their attempts to carry out the wishes or directions of the client to the letter. The best guarantee of an upbringing a client would approve of is to simply choose someone who knows them and their children well, and whom they trust to navigate life’s complexities on their children’s behalf in the same manner as the clients would if they were alive to do so.

If clients don’t want the other parent to raise their child

If one of a child’s parents dies, the other parent usually takes responsibility for raising the child provided the surviving parent has parental responsibility. This, of course, is what most people want. If clients are separated or divorced, however, they may feel strongly that the child’s other parent shouldn’t have custody if something should happen to them. But a judge will grant custody to someone else only if the surviving parent:

• Has legally abandoned the child by not providing for or visiting the child for an extended period, or
• Is clearly unfit as a parent.

In most cases, it is difficult to prove that a parent is unfit, absent or has serious problems such as chronic drug or alcohol abuse, mental illness, or a history of child abuse. If clients honestly believe the other parent is incapable of caring for their children properly, or simply won’t assume the responsibility, you should advise the clients to have an Exclusion Form drafted. In the event of a court case this would give the judge something to take into account particularly because this is the only realistic way the parent who has died can make the court formally aware of the problems and their wishes. Judges are always required to act in the child’s best interest. In choosing a guardian, a judge commonly considers a number of factors in accordance with the welfare checklist, some of the the main ones are:

- The child’s preference, to the extent it can be ascertained

- Who will provide the greatest stability and continuity of care?

- Who will best meet the child’s needs?

- The relationship between the child and the adults being considered for guardian

- The moral fitness and conduct of the proposed guardians.

Some Important Points Regarding the Children’s Act, Parents, Children and Parental Responsibility

In English law Parental responsibility is a legal phrase used to define who has the rights and obligations in making decisions which affect the child’s life. Parental responsibility includes the following legal rights and responsibilities:

• Providing a home for the child
• Having contact with and living with the child
• Protecting and maintaining the child
• Disciplining the child
• Choosing and providing for the child’s education
• Choosing the child’s religion
• Agreeing on the child’s health and medical care
• Consenting to medical treatment for the child
• The right to choose guardians for your children in the event of your death
• Accessing the child’s medical and educational records
• Naming the child
• Responsibility for the child’s property
• Allowing confidential information about the child to be disclosed

Who has parental responsibility?

- Mothers automatically have parental responsibility.

- If the parents are married at the time of the child’s birth then the father has automatic parental responsibility. If the parents subsquently marry, the father automatically aquires parental responsibility upon marriage if they have not done so by any other method.

For unmarried fathers the rules are more complicated. Being the biological father of a child does not mean that they have an automatic right in law to parental responsibility. Likewise, even though they may be registered as the father on their child’s birth certificate, this does not always mean that they have automatic parental responsibility. If the father is unmarried and separate from the child’s mother and does not have parental responsibility, then they do not have a legal say in the child’s upbringing.

Fathers do have parental responsibility if:

• They are the father of a child born after 1st December 2003 and their name is on the birth certificate.

They do not have parental responsibility if:

• They are the father of a child born before 1st December 2003 and are not married to the child’s mother.
• They are the unmarried father of a child born after 1st December 2003 and they are not named on the child’s birth certificate.

Applying for parental responsibility

There are a number of ways of getting parental responsibility and these are:

• Entering into a voluntary parental responsibility agreement with the mother
• Marrying the mother
• Applying to the court to obtain a parental responsibility order
• Obtaining a residence order
• Being appointed as the child’s guardian

To apply to the court for a parental responsibility order, a father needs to show a number of things:

• The application is being made in the interests of the child’s welfare
• A degree of commitment to the child exists
• A degree of attachment between the child and father exists
• The father’s reason for applying for the order is genuine and well-meaning

If parental responsibility is granted then it has to be exercised jointly with the mother of the child and therefore any decision regarding the appointment of guardians must be a joint one. 

- The right to appoint guardians rests solely with the parent or parents who have parental responsibility and therefore unless the father has parental responsibility he has to be appointed guardian in the mother’s Will in order to raise his own children or apply to the court upon the death of the mother.

-Step parents acquire some rights for stepchildren upon marriage but the right to determine guardians is not one of them. If a step parent wishes to raise stepchildren in the event of the death of their partner they would have to be appointed as a guardian within the Will of the deceased person who has parental responsibility.

- Guardians raising a minor child acquire the right to appoint guardians in the event of their deaths.

- Guardians commence acting upon the death of the second parent or first parent if the mother has sole parental responsibility.