As a parent, your minor children are dependent on you and you spend a great deal of your time ensuring your children are safe and provided for.  Have you given thought to who would do this if you were to die before they reach 18?

As part of making a Will, you can choose a Legal Guardian for your children, who would assume responsibility if you (and their other parent with parental responsibility) were to die.

You may know who you would want to become a Guardian, but have not gone through the legal process of naming the person or people in your Will. Unfortunately, this probably means that person won’t be able to make the necessary decisions relating to the care of your children.

Step-parents do not automatically become Legal Guardians if a child’s birth parents die, for example. Step-parents can apply for parental responsibility, which would give them the same rights as a birth parent. But without completing that application or being named as a Guardian in your Will, they have no legal right to act as a Legal Guardian of your children.

Other relatives like grandparents and siblings also have no automatic status as Guardians for your children in the event of your death. In the absence of a named Legal Guardian, your child would become a Ward of the State. This means Social Services and the Courts will decide where they should live.

To safeguard your children and provide for them as you would wish to, it is vitally important to choose a Guardian or Guardians.

What is the role of a Guardian?

Once you have appointed a Guardian, their guardianship begins immediately on your death (providing there is no surviving parent with parental responsibility for your child).

A Guardian has legal responsibility for your child, which means they are responsible for choices about medical treatment, health and education of your child. They will also decide where your child should live and make day to day parenting decisions. In short, they assume ‘parental responsibility’ for your child.

How should I choose a Guardian?

Clearly, you want to choose someone you trust to look after your children and this could be family members or friends, as long as they are over 18. You should also seek consent from your chosen Guardians before naming them in your Will, to ensure they are willing to take on the role

Factors to consider when choosing Guardians include:

• Is their lifestyle compatible with looking after children?
• Do they have the financial capacity?
• What is their existing relationship with your child – will he/she be happy living with them?
• Their age and health, will they be able to cope with practical demands of the role?
• Where do they live, how easy will it be for your child to relocate to live with them?

We are sometimes asked “At what age can a minor choose their Guardian?” The answer is that children under the age of 18 do not have a legal option to choose their Guardian. However, the Court will generally take their views into account once they become teenagers and a child does not have to physically ‘live with’ the Guardian (for example, when considering schooling implications.)

The choice of Guardian is made either through your Will (as their parent) or following an application from a relative or friend that is accepted by the Court. However, it is important to choose a Guardian your child (or children) likes and would be happy to live with.

For more considerations on appointing a Guardian or Guardians for your children, download our free factsheet which goes into detail on questions such as:

• Should I appoint a single Guardian or joint Guardians?
• What are ‘Supporting Guardians’ and do I need them?
• How do I provide financially for my children after my death?
• What is a Trustee and do I need to appoint one (or more)?
• Can I appoint Guardians who do not live in the UK?

For anyone you choose as a Guardian, you need to be confident that they will take care of your children in a way that you would be happy with. If you have specific beliefs or requests about how a Guardian should parent your children, you can create a Letter of Wishes to accompany your Will.

What is a Trustee?

You will want to provide for your children in your Will, and this is done by the creation of a Trust, which is managed by those you appoint as Trustees. In general, children under 18 cannot inherit outright. Instead, funds are held ‘on trust’ for them and can be used for their maintenance, education and general benefit. The Trustees become the legal owners of these assets and can therefore make decisions about how they should be used.

You may decide to appoint the same people as your Guardians and as your Trustees. If you trust them to look after your children, they are probably also suitable candidates to manage the Trust. In cases where there could be a conflict of interest, for example if you appoint your ex-spouse as a Guardian, or where the Trustees may have to make decisions which would benefit them as well as the children (for example, purchasing a larger vehicle), it would be best to also appoint an independent Trustee.

What is a Letter of Wishes?

This is a document that is drafted to accompany your Will, sometimes called an ‘Expression of Wishes Letter’. It sets out your guidance for your Guardians and any Trustees on how you would want your children to be raised and provided for, and what age they should inherit outright.

It offers you peace of mind that, should the worst thing happen to you, the people you entrust with your children will know what you expect for your children.

A Letter of Wishes is likely to include the following:

• Your wishes around education, for example private education or boarding school for your children
• Where your children should spend school holidays
• Your children having regular contact with both sides of their family
• Receiving pocket money and when they should have their own bank account
• Gifts you wish for them to receive on major birthdays
• Encouraging your children to have a weekend or part-time job
• Providing funds for a gap year or further education
• Encouragement to take driving lessons and purchasing a small safe car out of the Trust Fund on them passing their driving test

Safeguard your children’s future

If you’d like to create a Will or update your existing Will to ensure your children will be cared for as you intend, please complete our short assessment form.