No parent likes to think that they will predecease their children, especially when they are still minors (under the age of 18). But not formally making your intentions clear could lead to Guardianship disputes or a family break up and ultimately your children may not end up with the people that you would have preferred take care of them. Here Helen Bradin, Partner at solicitors Bradin Trubshaw & Kirwan LLP, highlights points to consider to safeguard your children’s futures:
Q: In the event that anything should happen to us, do my parents have a right to take on responsibility for our two young children?
Helen: Legally speaking, grandparents do not have an automatic right to assume responsibility for their grandchildren. Whilst they may initially be well placed to look after them, longer term any siblings you have may perceive the double generational gap too great and themselves a more appropriate age to raise your family. This is why it is so important to appoint legal Guardians – usually done in conjunction with making a Will – to prevent family disputes and the Courts deciding where your children will live.
Q: What does ‘Wards of the State’ mean?
Helen: If the parents of children under the age of 18 both die and no Guardians have been appointed then the children become ‘Wards of the State’, meaning that the Courts will determine where they will live. So to prevent grandparents and siblings on both sides of the family fighting over the Guardianship of your children it is advisable to formally make your wishes clear in your Will as the Courts will honour the appointment of a Guardian over the objections of family members, unless family members can prove it is not in the best interests of the children. Regrettably all too often people with small children perceive that they are too young to need a Will.
Q: What are primary and secondary Guardians?
Helen: It is a good idea to appoint primary and secondary Guardians as opposed to joint Guardians. In doing so it makes clear who you wish to have responsibility for your children in the event of your death (the primary Guardian). A secondary Guardian is effectively a replacement should the primary Guardian be unable or unwilling to look after your children.
Q: How do I change my children’s Guardians?
Helen: Sometimes a change in circumstances, such as an intended Guardian dying, may mean you wish to change your appointed Guardians. You can do this by either appointing an alternative (secondary) Guardian in your Will or by writing a Codicil (a minor change to your Will leaving other provisions unchanged).
Q: Is a Guardian responsible for our children’s finances?
Helen: A Guardian takes care of your children’s finances until they are 18 and is often also a Trustee for any property held in trust. It is however advisable to appoint another Trustee such as a solicitor or accountant who can advise on the financial and legal aspects of a trust and who can guard against conflicts of interest. Bear in mind when making a Will which appoints Guardians that you need to ensure sufficient assets are available to enable the children to be looked after.
For advice on family and other legal matters contact Bradin Trubshaw & Kirwan LLP on 01543 421840 for a consultation or email email@example.com