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The Importance of Guardianship

View profile for Chris Wilkes
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Considering the worst-case scenario is not always easy to do. However, when you have children it is important to think about who would care for them if the worst should happen to you. It cannot always be assumed that if the worst-case scenario occurred your child would end up with your partner, grandparents or even their own mother or father.

Surprisingly, if a couple is unmarried, the father must be named on the birth certificate to have an automatic right to look after his child should something happen to the mother. This includes when a couple is still in a loving relationship. Equally, if the father or mother is estranged from their child and a step-parent or other relative has an active role in caring for the child, they too may not have automatic custody.

So who decides?

If there are no instructions left for the care of your children, then it will be up to the court to decide; this will be a hard and emotional process for your child who has already lost a parent. The court's outcome may not fall in line with your or your child’s wishes. It could be that a child ends up in the custody of an estranged parent or becomes a ward of the state.

An easy way to avoid unnecessary issues for your family and children is to put your guardianship wishes in your will; this way there can be no question as to what you wanted for your child. 

How do you choose your child’s guardian? 

It is always important to talk to the person or people you want to care for your children to ensure they know your wishes and are happy to take care of your children, and also have the relevant means to do so. While grandparents tend to have a special bond with their grandchildren, they are not always the appropriate people to take on the responsibility of a guardian due to their age, possible illness, space, etc. Choosing family members who live far away may also be an issue, as this could mean your child has to move somewhere new which could be traumatic. 

There are aspects that are important to consider:

  • Does your child know and like the guardian?
  • Does the guardian have similar views to yours when raising children, e.g. morals, schooling, religion?
  • Would your child have to relocate?
  • Would this person create the loving environment that you would want for your child?
  • Would your child be happy with them?

The trust fund

You may also leave behind assets to benefit your children, such as property or savings; these will often be held in trust for the benefit of your child. The question here is who would administer the trust? While some people may think it sensible to have your child’s guardian as a trustee, that may not always be the case. 

Trusts are tricky to administer and have their own set of rules. Where guardians are also trustees, the concern can arise when they are unsure if they are benefiting themselves or the children when using the trust for the child’s care.

It can be a good idea to have an independent trustee or trust corporation to help make the decisions that ensure the trust fund is used for the benefit of the child.

As a parent, you always want to protect your children from harm. Making a will, and placing them with the right guardian should the worst happen to you, can help to achieve this. For any further information please contact our Private Client team.