One of the most important considerations for parents regarding estate planning is appointing a legal guardian for minor children.
Whilst the thought of not being there for your child may be unsettling, planning to secure their future can give you peace of mind, knowing that they will be cared for by someone you trust.
In the article below, Myerson's team of expert Wills, Trusts, and Probate solicitors explain what every parent should know about appointing a legal guardian.
What is a legal guardian?
A legal guardian is an individual you elect to take responsibility for your child should you and anyone else with parental responsibility die before they reach 18 years old.
A legal guardian effectively assumes the role of a parent, raising and caring for the child and making important decisions about their upbringing, education, religion, healthcare, and general welfare.
How to choose a legal guardian
Choosing the appropriate legal guardian is a significant decision that requires careful consideration. You can appoint anyone over 18 as your child's guardian.
Some parents may consider their sibling or close friend to be an obvious choice for the role, but the decision might not be as clear-cut for other parents.
Below, we have set out some important factors to keep in mind:
- Age and health – it is crucial to ensure that the potential guardian is physically and mentally capable of taking on such a responsibility. For this reason, a grandparent may not always be the most sensible option.
- Willingness and ability – it is best to discuss your intentions with the potential guardian before making the appointment to check that they are happy with the arrangement and can fulfil this responsibility. Having more children to care for may be too much if they already have children.
- Resources - you can use your will to leave the guardian some money in trust to help care for your child. However, it is still important to choose someone who can financially support them. This will help if the money you have left runs out or needs to be used for something unexpected.
- Parenting style and values – it is wise to choose someone whose values on matters such as education, medical care, religion and discipline align with your own and who you trust to raise your children in accordance with your wishes.
- Relationship with your children – we would suggest choosing individuals who have a strong, positive bond with your child to ensure that they will have a stable and comfortable environment.
- Location and lifestyle – bereaved children benefit from stability, and you may, therefore, wish to choose a guardian who lives close to your child's school, friends or other family members to minimise the amount of change they will experience at an already difficult time.
- Your children's needs – in some circumstances, your child or children may have special needs (e.g. learning difficulties, physical disabilities, etc), and the guardian you choose must be equipped to meet those needs.
How to appoint a legal guardian for your child
The most common method of appointing a guardian is through your will.
Although not essential, this is widely viewed as best practice because the appointment, as with all other matters included within the will, is intended to take effect on death.
Appointing a guardian through your will adds the benefit of financial arrangements being included within the same document.
Some parents appoint a substitute guardian if the first choice cannot fulfil the role.
To avoid any confusion or disputes, the guardian must be clearly identified in the will to whomever you appoint.
You can discuss the potential appointment with any guardian or substitute guardian to give you peace of mind that they understand and accept the responsibility.
We recommend regularly reviewing your will, especially when major life events occur, to ensure that your guardianship decisions (as well as all other provisions) continue to reflect your wishes.
What happens if your will does not specify a guardian or if you die without a will?
If your will does not specify a guardian or if you die without a will, the court will decide who becomes the legal guardian of your children.
This process can be lengthy, stressful and uncertain for your family (especially if there is a dispute).
The child may have to go into care or live with other family or friends until the court appointment is made, and the person who is ultimately appointed may be different from the person you had hoped would look after your child.
To minimise this uncertainty risk, we recommend establishing a legally binding will that clearly instructs guardianship.
Contact Our Wills, Trusts and Probate Lawyers
Thoughtfully choosing and legally appointing a guardian in your will is an essential step in ensuring your children's future well-being and stability should the unexpected happen.
For assistance with drafting or updating your will, contact our specialist Wills Lawyers on:
01619414000
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Bik-ki Wong
Partner and Head of our Wills, Trusts, and Probate
Bik-ki has over 20 years of experience acting as a Wills, Trusts, and Probate solicitor. Bik-ki is an expert in dealing with high net-worth individuals as well as those who have more complicated circumstances or those with mental capacity issues.
About Bik-ki Wong