How to choose legal Guardians

As parents we worry about our children. But the one, absolute worst-case-scenario, blood-run-cold, shivers-down-the-spine thought is not being about to raise our children. But, unfortunately life is unpredictable and sometimes the unthinkable does happen. Heartbreakingly 24,000 children in the UK are bereaved of one or both parents each year, which is huge number when you think about it. You do your best to protect your children but, if you were to die the one thing you cannot shield them from is the earth shattering grief that they will feel. However, simply by naming Guardians for your children you can ensure they will be with best person, bar you, that will give them the care and support they will need. All it takes is for you to write a simple Will and include your wishes in there and yet the majority of parents haven’t done it…

What is a legal Guardian?

In short it’s an adult that has been legally designated to assume full parental responsibility for a child if both parents died. Someone to step into your shoes should you no longer be around to wear them.

Why do I need to name Guardians for my children?

It’s a common misconception that should you die custody of your children will automatically pass to your parents or your siblings. This is simply not the case. If there are no Guardians in place the court will decide who they will live with. In fact ANYONE can apply for the job and a Judge, who doesn’t know your children or the person that they will be sending them to live with, will make the decision. Not ideal is it.

Worst case scenario… your children will be put into the care of the local authority while the court goes through their processes. And, if no one suitable can be found they will remain in care until they are 18.

How do I do it?

It’s really simple, you just need to write your Will and state your Guardianship wishes in it. You’ll need to have to Will professionally written for these choices to be legally binding. That way, if need be, they will stand up in a court of law. If you and your Partner are making separate – ie not mirror Wills – then please ensure you name the SAME people in your Wills.

How to choose the right Guardians…

When you get down to it, actually doing it is probably the easiest bit it’s deciding who to choose that can be the difficult part. Picking a legal Guardian is an important decision that could fundamentally affect your child’s future. It’s tough, but there are a few key considerations that, when given careful thought to might make it easier to understand who would be best to choose.

  • Who is most able – physically, emotionally and financially to care for your children until adulthood
  • Do your children already know and love them?
  • Would your children need to move away from the stability of their current schools and friends?
  • Would they be good role models?
  • If they have other children do you children get on with them?
  • If they have other children will yours get the attention and room they will need?
  • Are their values and parenting styles and values similar to yours?
  • If you have any particularly strong beliefs would they uphold them?
  • Will they shape your children into the adults you would wish them to become?

Once you have your answers make a list and then, when you have come to a joint decision, make sure you ask your potential Guardians before putting it down in black and white. They will, hopefully, NEVER be asked to take on the role but all the same it’s not something that should come as a surprise. Also, becoming the Guardian of bereaved children is a massive undertaking and, although it may be hurtful they may just not feel equipped for the job.

Guardians and unmarried parents

Marriage is of no relevance is this instance. Both biological and adoptive parents have the automatic right to Guardianship. So if one of you dies the other assumes full responsibility. If you both die then your child will be placed in the care of the Guardians you have named in your Wills.

Guardians and Step-Parents

Unfortunately Step-parents do not have any automatic Guardianship rights. So, unless you can get the child’s other biological parent to come forward and said they are unable/unwilling to look after the child, chances are a Judge would place them in their care. This parent could be someone your child has had little contact with them or it would mean splitting them up from any half brothers or sisters. It’s not ideal and would mean a potentially long and costly legal battle for a step-parent to gain custody, if they could. It’s pretty sad.

Guardians and Parents you just don’t want your children to live with

This is a tricky one and unfortunately the law is not on your side. As we mentioned biological parents have automatic Guardianship rights. So, not wanting your child to go and live with their other biological parent because relations are strained, it was a messy break-up or you don’t approve of their new relationship is not a good enough reason and is not going to stand up in court. Unless you can unequivocally prove that it was unsafe for your child to go and live there, that they are an unfit parent for any reason or have drink, drug or mental health problems are you going to get a Judge to rule in your favour.

Best thing to do is to write a letter stating why you don’t want them to go and live with them, make sure your reasons are solid and everything relates back to the welfare of your children and a judge will take this into consideration at the time of making the decision. Again, not ideal but you’ve got to do as much as you can.

If you have any questions about naming Guardians or would like to speak to us about writing your Will please contact us on 01322 664885 to arrange a free, no obligation consultation.

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