Looking after your Children.

Parents making a Will should always be advised to consider the question of who will look after their children whilst they are minors. Understandably this is often the most emotive element of making a Will.

Many people can think relatively easily about the formalities of their death – music at their funeral, who gets what item of jewellery, how to share the home but turn to the question of who will look after their young children and I have often found myself with a client who genuinely struggles to even verbalise what they imagine will happen. It is a tough decision but an absolutely necessary one.

A person chosen to care for minors in a Will is known as a testamentary guardians. The Will gives them parental responsibility.

Legal Nugget – Parental Responsibility

In England and Wales all mothers automatically have parental responsibility for their children and since the end of 2003 all fathers whose name appears on the birth certificate also have parental responsibility.

Parental responsibility is a rather expansive term but in practice it means the person or persons who have the final say in what happens to the child. Generally, parental responsibility sits evenly between the parents – with neither having more of a say than the other. In practice this may not be the case when issues of residence and Court orders are involved but for the purpose of this article I am treating parental responsibility as something shared equally.

Finally, as you will see in this article, parental responsibility can be acquired in a number of ways by people who are not the biological parent of a child such as adoption. As such, when using the word parent I am including anyone who holds parental responsibility for a child.

On the death of one parent, parental responsibility continues to rest with the surviving parent but what happens in circumstances when all those with parental responsibility have died? 

Many people assume that in tragic circumstances like this family members step in which in practice is what often happens. However this is not a legal position and leaves the family in limbo as there would be no one with parental responsibility.

This means that kind and caring aunt may have significant issues completing official documents – such as passport applications and school forms or having to make decisions about medical care – all things where parental responsibility is needed.

In addition, if there was a dispute within the family about who should be the child’s primary carer then the Court would need to become involved – which I am sure no parent would ever want. 

Legislation provides that a testamentary guardian obtains parental responsibility upon the death of all those with existing parental responsibility. This means that the caring aunt named in the Will can point to the Will as evidence of her parental responsibility. No court orders, no family agreements – the Will is sufficient.

Deciding on the need for such an appointment is the easy decision – the tough one is choosing who. I have seen a couple nearly break up such was the disagreement about which family member should be appointed.

The choice of guardian is an incredibly personal one and will be based on an entirely unique set of circumstances. The points I would make cover the issues I have come across in practice. It is in no way the full list of factors:

  • Where do you want your child to be raised?
  • What parenting approach would you want? Who would be best able to do this?
  • Will your choice have the space and will they need financial assistance?
  • Will your choice want to care for your child?
  • Will your choice encourage relationships on both sides of the child’s family?
  • Will your choice be physically able to be a parent? E.g. how old will the person be when the child reaches 18?

Example Scenario

A couple living in England pass away. They have Wills with an appointment of a Guardian – an uncle in Australia where the mother comes from. The child was born in England and goes to school. He sees is English family regularly.

There is nothing wrong with the choice but the consequences will be that he is unlikely to see as much of his English family or friends and further to the tragic death of his parents, there will be further disruption by relocating to another country and culture.

In the above situation it would be very important to ensure that the child is legally allowed to move to Australia and that Australian laws (which are federal and state) recognised testamentary guardianship. It would also be sensible for the couple to discuss their decision with both sides of the family.

Conclusion

If you have young children you should give serious consideration to the appointment of testamentary guardians. Think carefully about your choice and if you can you should try and agree on the same person or people. Even separated couples can usually agree on who they feel would be the best person to care for their child in the event of their death.

As with all these articles I would stress that whilst the Will itself is a relatively simple document, the factors to take into account are relatively complex. The best advice is – use Mundays.

If you wish to discuss your Will needs please get in touch with our Private Wealth Team. If you would like to discuss any issues regarding the care and responsibility towards your children please contact our Family team who have expertise in child matters.

The contents of this article are intended as guidance for readers. It can be no substitute for specific advice. Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent changes in the law, or the content of any website referred to in this article. © Mundays LLP.

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