Who Looks After Your Children When You Die?
If you have made a Will and have children under the age of 18. You would have nominated Guardians for your children and these are the people you are entrusting the care and legal guardianship of your children in the event of your death.
If you die without making a Will you die intestate and English law applies to both the estate and any children under the age of 18 that you leave behind? Normally the law allows for the custody of any children under 18 to pass to any surviving parent.
In situations where there is no surviving parent, then it is up to the courts to decide who would be the most appropriate person to take care of them until they reach the age of 18.
This could take months and could result in unnecessary emotional distress for your children and other members of your family.
Often a close relative, or friend, can apply to the Court for an Order appointing them as Guardian. The final decision is made by a judge and it is possible your children could be temporarily taken into care until the Courts have decided who the best person to take care of them until they reach the age of 18 would be.
By making a Will and nominating a specific Guardian for your children will ensure that the care and custody of your children are granted to the people you have chosen.
Guardians effectively take on the role of a parent to your children, when nominating guardians in your Will, you should always check that your preferred guardians are happy and willing to look after your children.
You should also ensure that you have made adequate financial provision for your children to enable your chosen guardians to provide for them.
Choosing Your Guardians?
Often people choose to appoint family members as guardians. Particularly where very young children are involved. If older children are involved sometimes the appointment of friends may be more appropriate as they are more likely to share a similar lifestyle and live closer than your bloodline relatives.
Although each parent can appoint different guardians. It is worth remembering that both will legally act in the event of your death so depending on who you have chosen, will impact on your children’s future. You can also appoint different guardians for different children but this may mean splitting them up.
Guardians have to ensure adequate contact between the children is maintained but you may not be happy having your children divided in any way.
Ideally, it’s better to limit the maximum number of guardians to two and it is preferable that they share a home as partners. This will ensure your children become part of a familiar and stable family environment at probably the most difficult time of their lives.
As a back up it is possible to nominate substitute/reserve guardians to ensure your children are protected and cared for should the circumstances of your chosen Guardians change.
The role of a guardian is the same as those of a parent. They are responsible for the care and upbringing of your child until they reach the legal age of 18
The terms you set out in your Will should ensure your executors and trustees have the ability to do all that is necessary to assist in your guardians in financial matters relating to your children’s needs for both health and education.
Becoming a guardian is a very responsible role and should not be entered into lightly. There will be financial, social and emotional implications and these matters should be discussed in detail between you and your preferred guardians.
Once your Will is written and your Guardians are chosen, you will have the peace of mind that your children will be taken care of should you die. Remember to review your Will on a regular basis, especially if there is a change to your wishes with regard to the guardianship of your children or a change to your current nominated guardian’s situation.