Responsibility for our children starts at their birth, naming them, providing a home, protecting, maintaining, guiding and disciplining them. We choose and provide a suitable education, agree to medical treatment on their behalf, and we look after their basic needs including supporting them financially.
When considering having children, whilst we may have discussed whether a child might bring meaning and happiness into our lives, unfortunately our children have absolutely no choice in the matter themselves. The philosopher, Mara van der Lugt, in her book, “Begetting; What Does it Mean to Create a Child”, considers whether anyone has the moral right to create a child. She argues that in doing so, we are deciding “that life is worth living on behalf of a person who cannot be consulted” and as such “we must be prepared, at any point, to be held accountable for their creation”. Van der Lugt observes that it is usually those who do not want to have children who are asked for an explanation as to why not, however perhaps it should be those who are choosing to have children who should be asked the question as to why.
And if we die with children under 18 years old, it remains our responsibility to have considered their future, which means having previously chosen the most appropriate person to guide them into adulthood.
What is a legal Guardian and how are they appointed?
A legal Guardian is an individual to whom you grant authority to care for your child if you die whilst your child is under 18 years old and legally a ‘minor’. All consideration and discussions as to who is appropriate become irrelevant overnight on the eve of your youngest child’s 18th birthday. Advising clients on appointing Guardians in their Will is often an emotive and challenging area to discuss, and as such, it can create an impasse.
Whilst parents may have an informal understanding with a family member to take care of their children if both parents die, unless the arrangement is formalised, usually in a Will, prepared and signed in accordance with the correct formalities, the decision is left to the Court. Although a Guardian’s appointment ends automatically when a child turns 18, you may wish to change your chosen guardian before this time. As long as you have mental capacity to make decisions, you may change the Guardian in your Will, either by revoking your Will and preparing a new Will, or simply, by making a codicil to revoke the Guardianship clause.
How to decide who should act as Guardian
Sensitivity about Guardianship can be exacerbated in complex or estranged families, often delaying the decision-making process, which in turn may delay signing a Will. As such, when considering who to appoint, parents should try to agree on the same Guardian because unless both parents die together, the named Guardian in the Will of the second parent to die will be appointed.
One concern often raised is that family members who are not chosen to act as Guardians may take offence. Whilst it is possible to name joint Guardians, it is inadvisable in most situations because if joint guardians disagree on a child’s upbringing and issues becomes insurmountable, they will be forced to defer to the Court for a decision to be made.
A helpful way forward is to name a substitute rather than a joint Guardian. This means that if your first choice Guardian is, for any reason, unable or unwilling to act, then the substitute Guardian will act instead. Whilst preferring one Guardian over another, consideration for your children’s wellbeing is paramount. Ask yourself who would be the least disruptive choice of Guardian for a child who has lost their parents. Consider whether the Guardian’s values align with yours. Contemplate their location, lifestyle, age, whether they have children of a similar age themselves, and if so, how many, all of which are relevant points for consideration.
Once the decision is made as to who you wish to appoint, ensure that you ask them if they are willing to take on the responsibility before naming them in your Will.
International considerations
It may be wholly impractical for your chosen Guardian, a close family member, to accept the responsibility of Guardian because of their location. To accommodate a transient society and cross border families, in some situations it may be advisable to appoint an interim Guardian who will only act until your chosen Guardian, a family member, is able to travel to your children to take on their responsibility. This relies on your interim Guardian being willing to stand down when your family member arrives and so it is important to be transparent and communicate this to those involved during your lifetime and in writing in a Letter of Wishes.
Letters of Wishes
You may wonder how your Guardian knows about your intentions for your children such as their education or your wish for certain family members or friends to remain a consistent presence in their life. In practice, it is acceptable to speak to your Guardian, informing them of your wishes. Alternatively, you may prefer to write your intentions in a Letter of Wishes, addressed to the Trustees of your Will. Unlike a Will which becomes a public document after death, a Letter of Wishes is confidential to your Trustees. Although not legally binding, a Letter of Wishes is persuasive guidance as to your intentions. If your Trustees are not also named as your Guardians, then it will be for your Trustees to share your intentions with the named Guardians in your Will.
I would always urge clients to try to keep a Letter of Wishes as simple as possible. Over-complicating intentions may cause confusion if it is impossible to fulfil your intentions.
What of the cost of raising someone’s children?
A Guardian is not obliged to support your child financially. It is usual that after the second death, the residuary estate is held on trust for the children until they reach a certain age, decided by you in your Will, at which point the children will receive your estate outright. The Trustees of your Will usually have the power to apply income and capital in your estate for the benefit of your children under 18, enabling expenses to be paid, either directly, or to the Guardian, who in turn, has the power to accept the funds on behalf of the children. Guardians may also be entitled to Guardians Allowance.
And if you do nothing
A recent study by Solicitors for the Elderly (‘SFE’) (now known as Lifetime Lawyers) has revealed that approximately 75% of parents have no legal arrangements in place for their minor children if they both die.
Quite aside from the unimaginable tragedy of dying, leaving minor children without parents, if a legal Guardian has not been appointed, the decision becomes the responsibility of the Court. Until the Court appoints a Guardian, above all, this may not be the person you would have chosen to act, and your children may be taken into care whilst the decision is being made by the Court.
Procrastination is inadvisable. Parental responsibility extends to considering and choosing a Guardian, and then asking them if they are willing to act. Thereafter, the decision should be legally documented, stored safely and like an insurance policy, hopefully never needed.
