Ensuring you have a will is incredibly important, especially when you have a family. And, if you have a young family, naming guardians for your children is likely to be the most significant part of your will.
What is a guardian?
A guardian will be responsible for any minor children in the event of your death. As the legal guardian of your children, they have the same legal responsibilities and duties that you had as parents. From marking birthdays, to making decisions about their school and consent to health care, your children’s guardians will take care of their wellbeing after your death.
If you do not appoint a guardian, then the courts will take responsibility for your children and appoint a guardian for them, even if there are close family members available. This can be a lengthy process which will usually involve social workers and lengthy assessments. It can even result in children being placed into social services care until court-appointed guardians are chosen.
There are also some situations where a guardian might be needed even if there is a surviving parent. For example, in situations where the surviving parent lacks the capacity to look after children, or even refuses to accept parental responsibilities.
Just like being a parent, being a guardian is an important and difficult job — and made harder because of the circumstances. So, it’s vital you get the choice right.
Who can be a legal guardian?
You can name any adult as a guardian for your children. It’s common for close family members to be appointed, especially for younger children. However, it’s perfectly acceptable to name close friends, and these may be more suitable for older children, where their personal values or location might be more suitable.
And there are no requirements to name a single guardian for all children. Each parent could name different guardians, or even different guardians for each child. They could also opt for several guardians to act together, as a committee. However, it’s best to name agreed guardians for all the children. In situations where both parents die (typically, responsibility will pass to a surviving parent if only one dies), having multiple guardians can be complicated, since they each have the same legal status, and ensuring contact between separated siblings will create difficulties and emotional upheaval.
Above all, though, they have to be someone who can take on parental responsibility for someone else’s child. While many can act in a child’s best interests, guardian responsibilities go much further than avoiding physical neglect, a guardian must also protect the child’s social and emotional welfare. It’s crucial that parents and potential guardians consider all the duties of a guardian when deciding potential arrangements.
Think about the practicalities
The most important factor will be to choose guardians who will raise children in a way that matches your beliefs and values. But make sure you also think about the practicalities of your choice.
You might be considering someone who is great with your toddler on an occasional park trip. But how will they manage as they age and are dealing, round-the-clock, with a moody teenager?
Both you and your prospective guardian need to think about what it means. From fundamentals like housing and property to everyday issues like meals and routines, and annual events like birthdays and Christmas, everything will change if they are called on to be a guardian. Everyone should make sure they take a decision based on the reality of what they might face.
Establishing a trust for the child’s assets
You should make provision for your guardian to cover the expense of looking after your children. This should include not just ongoing expenses, but you may also need to cover the costs of things like furnishing a child’s room or even moving to a bigger home.
However, you should not leave all your assets to your guardian, but instead set up a trust for the benefit of your child. This can be used to cover the cost of their upbringing, as well as supporting your children even after the guardian’s responsibilities have ended. And although you will trust your children’s guardian, you might even want to appoint a separate financial guardian. The skills needed to raise children and to look after their financial interests are different, not everyone has both skillsets.
Financial guardians will be responsible for advancing money to the guardians looking after your children. Typically, because you will appoint guardians you trust, having guardians undertake both roles should not be a problem. However, by having an additional guardian, you also have another person looking after your children’s interests.
The most important decision you can take
Choosing a guardian might be the most important decision you can take, even though you hope it is never acted upon. It’s one that needs incredibly careful consideration, and the best guardian for your children might not be the most obvious. Your life might have taken a different direction to the rest of your family, for example, and you might have moved away from your home area or even have very different values to your closest relatives.
And even when you think you have decided, you must consider the practical implications of it. Good intent alone is not enough for a guardian. They will need to have the skills, patience, and emotional strength to support your children to adulthood.
Finally, you have to ensure that you have the right legal and financial structures in place to support both the guardian and your children as they grow.
Taking advice from an estate planning professional can help you consider everything and give you the confidence that any guardianship is set up properly. Then you will have the peace of mind that, whatever may happen to you, you will always be able to look after your children.
