This blog comes from Abigail Bird and Darren Francis of law firm Laurus.
Appointing a legal guardian for children in your care is an important consideration, should you pass away before the children reach 18 years of age. A testamentary guardian is the person you feel would be in the best position to raise your child if you pass away. It can be a daunting decision, so we’ve put together some key considerations to help you make an informed choice.
First, bear in mind that if more than one person has parental responsibility, either as a birth parent, or through a Child Arrangement Order or Special Guardianship Order, you should try and reach an agreement on who to appoint. If no agreement is forthcoming, and one person has appointed a guardian, then the Court can decide who is in the best position to care for the child. If a legal guardian is not appointed at all, then the Court may appoint someone to have parental responsibility.
There are also a number of practical considerations when deciding who to appoint. Your intended legal guardian must be over the age of 18 when you appoint them, and they also need to be able to care for your child until they’re an adult. They will need to have the time and ability to care for your child, as well as any children of their own, into adulthood.
Consider if it is important that they are local to you – would appointing them as guardian involve relocating your child, and moving to a new school? You may prefer to appoint someone who is local to you, to maintain stability.
Equally, think about which values are most important to you and your loved ones, and if your intended guardian shares your views. If you are appointing a couple, you may want to consider what should happen if they were to separate.
If the children are old enough to understand the implications, you could approach them sensitively and ask them who they would prefer. It may be useful to consider the existing relationship between the child and the intended guardian, as this is often a strong deciding factor.
Guardians and Trustees
Although you can appoint a guardian in a separate document, it is good practice to include the appointment in a Will. This way, the Will is less likely to be forgotten or lost after a death and makes certain your wishes are followed. It also means you can record your testamentary guardians, substitute guardians, and trustees all in one place. These all create an added layer of protection for your child.
So, what is a trustee, and should it be the same person as your intended guardian? Trustees manage any finances on behalf of minors, while guardians are responsible for day-to-day upbringing. It may be more practical for the guardian to also be the trustee, as they will know exactly what the child needs. On the other hand, consider if it would be overwhelming for one person to be both guardian and trustee. If you appoint two individuals, they can support each other in bringing up your child in the best way possible.
To summarise, appointing a testamentary guardian is a sensible way to protect children in your care. There are lots of factors to carefully consider, including who else has parental responsibility, and who will manage your child’s finances. When drafting the Will or document to record your wishes, a lawyer can advise you on the best course of action, should you need support.
For more information on testamentary guardianship click here.
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