Appointing Guardians in your Will is the most important thing parents may ever do.
The bad news is that many parents don’t get around to making a Will to appoint guardians for children, as well as all the other issues, until their children are teenagers. It is generally pointless once they reach 18, as they legally have new “parents” who are the only ones able to make decisions if they are unable – the Judges at the Court of Protection – unless they have Lasting Powers of Attorney appointing you or others as attorneys.
Just to clarify, children over 18 are adults, and you have no legal right to make decisions for them should they have a serious illness, drug reaction, accident or another mishap, which means that they cannot make significant decisions within a reasonable time considering the urgency and importance of the decision.
Some children reach 18 already unable to make significant decisions, and the simple route of creating Lasting Powers of Attorney is not open to them. The parents, or others such as Social Services, must apply to the Court of Protection to be appointed as a “deputy” which brings with it much delay and bureacracy as well as cost.
Exactly the same happens to an adult who does not have Lasting Powers of Attorney.
The second most important is to get some relatively inexpensive life insurance in place – not something I do, but if you would like a chat with a professional financial adviser, use the form below – no obligation.
But back to my end of it, the Will.
When should I appoint Guardians for children?
In an ideal world, before you get pregnant: a baby can be viable as early as 21 weeks, and some people don’t even realise they are pregnant in the early days.
It must be better to get ahead of the game, and adopt a positive attitude – everyone worries that things can go wrong, but planning ahead is always prudent, and if you need to do a Will anyway, it certainly won’t cost any extra (at least with me). So as getting married generally invalidates old Wills, set it up with a Guardian then. If you are not married, and the fathers name is not on the birth certificate, then that is even more crucial.
Who would make the most appropriate guardians?
This is something which needs regular review. I always recommend one no less often than every 3 years, more frequently if significant changes take place in between. Parents should consider factors such as their age, where they live, do the children know them and how well they would cope with children of a given age. Even youngsters can grow into moody teenagers and if the guardians are getting on a bit by then, that can be very stressful for everyone.
- Cultural background and outlook can also be important.
- Is there any bond between the children and guardians? Love is really important.
- Are the guardians financially responsible? If not, additional precautions may need to be discussed.
- Will the guardians bond with the rest of the family? Your kids should stay in touch with relatives.
- Is the guardians relationship stable? It can be a thought to aapoint a prime guardian and the other as reserve?
- Will the guardians make Wills appointin others you trust as guardians should they die?
You also need to consider how the guardians would be recompensed – at the very least they should have the extra costs covered. They might even have to move into a larger house. It all needs thoughtful discussion, which is part of my client service. Maybe the guardians should be one of the trustees of the trust fund set up for minor children in your Will, though probably not the only one – they might be over-generous to themselves!
No Guardians for children? Social Service will take on the responsibilty
The over-riding concern is that children should be in the most appropriate environment at a time when they may have suffered great trauma through the loss of one or more parents. Being put into foster care by Social Services is not a great way of easing their stress – they need some familiarity. Further protection comes in the form of:
What does a Children’s Guardian do?
Children’s Guardians are there to help achieve the best possible outcome for the children they represent. In particular, they:-
- Appoint a solicitor for the child who specialises in working with children and families;
- Advise the court on what work needs to be done before the court makes a final decision;
- Write a report for the court saying what they think would be best for the child. The report must tell the court about the wishes and feelings of the child. You should receive a copy of the report before the final hearing.
To do this, the Children’s Guardian spends time getting to know the child and members of their family. They talk to other people who know the family, such as relatives, teachers, social workers and health visitors. They attend meetings on behalf of the child, check records and read reports and statements. They may also recommend to the court that other professionals are asked to help, such as a paediatrician or a psychologist.
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I hope that is useful, let me know what your views are, this is simply my attempt to prod parents into doing the right thing!