When we're gone...No one wants to think about the possibility of not being around for their kids as they grow up. Yet it's vital that we ensure they are well cared for financially and emotionally if the unspeakable happens. Sam Pope looks at the emotional and practical issues surrounding choosing guardians and speaks to family law expert, Jane Mitchell, about the legal aspects.
Before having children, I had a vague idea in my head about creating a will but there was no real incentive to do it. Even though I partly own a house and have a few savings, I knew that, should I die, things would sort themselves out. Besides, thinking about a will sounded too serious, too grown-up and far too morbid. However, three years into my daughter's life and I have suddenly become very serious about this topic. For her benefit if nothing else, it is vital that my husband and I sit down and think about her future in the awful event of both of us not being around with her. But, while the money side will hopefully be quite straightforward, what is causing us concern is who would look after our little girl in our absence. Choosing suitable legal guardians for our children has to be one of the most difficult decisions we will ever have to make. As parents, we have our own views on how to bring up our child and our own particular set of values. Entrusting someone else to do this for us can seem not just daunting but impossible, even if they have similar ideals. Even asking them to agree to such a massive undertaking is off-putting, as babyworld member Amanda says. "I must admit I haven't made arrangements. It's such a huge thing to ask someone isn't it? When I've chatted about it, people have said: 'Oh I'll have them' but I really wonder if they understand the full implications of taking on someone else's children." What is, and who can be, a legal guardian? "A legal guardian is someone who a parent chooses to look after their child(ren) in the event of their death," explains Jane Mitchell, a partner and family law specialist at Manches. "Any individual may be appointed as a guardian, with the exception of another child. A parent can appoint a guardian in their will, or in any other written, signed document. The guardianship does not take effect until the death of that parent (or both parents, if both have parental responsibility). The guardian will then act as the parent of the child in every way and have 'parental responsibility' for the child." The mere fact that this person will be taking over your role as parent means you need to think long and hard about who would be able to step into your, and your partner's, shoes should the unthinkable happen. A few people may immediately spring to mind, or perhaps no one person will stand out as the best one to do the job. When considering who should be entrusted with your child's future wellbeing and upbringing, Jane advises the following. "Since a guardian has all the rights, duties, powers, responsibilities and authority that a parent would normally have in relation to the child, it is therefore important to appoint someone who you consider to be capable of, and willing to exercise these responsibilities in the way in which you would like." Some people might automatically know whom to entrust their children to. A close sibling is often the first choice, as babyworld member Trixie says. "My sister and I have a legal agreement whereby if anything were to happen to us, she and her husband would take responsibility for our daughter and vice versa. We've also made financial arrangements whereby our daughter is looked after financially while still a dependent." Having a reciprocal agreement can make matters more comfortable simply by showing the fact that both sides are willing and happy to take on such a huge responsibility. But what if, like me, you are an only child and have no close brother or sister to turn to? Or if you do have siblings but either don't get on with them or don't agree with their particular style of parenting? Even worse, what if you completely doubt their reliability as a person, never mind a parent? This predicament is one that is currently facing Fi. "I've been worrying about this recently. My brother and sister are a no-no. Sis doesn't want kids, Bro's not reliable enough. I wouldn't want my brother-in-law to have my son as I don't really like his 'attitude' around children, even his own son. There would probably be huge arguments and fall-outs if we chose one set of our parents over the other. My best friend is single and doesn't want children, so that's no good. I really don't know what would happen. It's very worrying." When grandparents become parents If you find yourself without a brother or sister (or suitable in laws) to turn to, your partner's or your own parents can be a natural, obvious choice. They love your children, they see a lot of them and you know they would do anything to help you out. However, there are immediate issues that spring to mind when considering your child's grandparents as guardians. The most obvious is age. If our parents are relatively young still then this might not be such an issue. However, if they are retirement age and beyond, two concerns are obvious. First of all, are they physically capable of looking after a manic toddler? Would sessions at Tumbletots and school sports days wear them out? I know for a fact that while my parents and in-laws love spending time with my daughter, by the end of the day, they look as if they have run a marathon and have to climb into bed at 9pm (like us, actually, but we're 30 years younger and recovery quicker). Another issue is the fairness of it. After all, your parents have done their share of raising children and are at the time of life when they should be able to enjoy themselves, having retired and hopefully paid off their mortgage. They have been there, done that and passed the reins on to the next generation, as Natalie raised. "My mum is still young and I know she would have them but she has done her share of raising kids. The same goes for my in-laws." One potential problem that was cited by a few babyworld members was ensuring equal and/or fair access to the children, should one side of the family become guardians and the others not. Samantha explained it well. "We were only talking about this at the weekend. We both agreed that we would want Henry to go to my parents, but we thought that my husband's family may object. We will have to get something in a will I suppose. I would want Henry to go to my parents with influence from my sisters in his upbringing." Obviously if your parents or sibling agree to look after your child, your family will naturally see more of them than your partner's. You could easily leave everyone to sort it out amongst themselves but in reality it's nicer to know that your child will be able to see both sides of his family should you and your partner not be around. A good way to get round family rivalry is to appoint someone neutral to be your child's guardian, such as a very close friend or, if you had your child baptised or welcomed as part of a naming ceremony, godparents (or the equivalent). Particularly with the case of godparents, it is almost a given that they will be surrogate parents if you cannot be there. For Louise, this is certainly the case. "My husband and I have both drawn up wills stating that my children's legal guardians are their godparents (very good friends of ours)." It is something that you will need to ask them to think about very carefully and answer very honestly. Agreeing to bring up a friend's child, or children, is a massive undertaking, particularly since they will inevitably become involved with family politics … on both sides. They will not only be bringing up your child but they will also be ensuring that both family sides have equal access and visiting rights, which could prove tricky at times. It is definitely worth pointing out these issues when you raise the matter so they can be fully informed of the level of responsibility they are undertaking. When choosing your child's legal guardians, it is best to state at least two different possibilities in your will in case, for any reason, one party is unable to take up their responsibility. Most people do have at least two different options and will state a preference for first choice. More unusual is the decision to have joint guardians, as babyworld member Chelle does. "I am an only child, and I have agreed with my best friend that my children would be cared for by her and my parents jointly. Basically, if my parents were unable to care for them, then they would do it and vice versa. By having joint care this means that they would both have a say in how they were cared for. This goes for the money that would be left too." "There is no limit on the number of guardians who may be appointed," says solicitor Jane Mitchell. "Two parents with parental responsibility can make a joint appointment of a guardian or guardians, or each parent can make their own separate appointments. It is also possible for additional guardians to be appointed at a later date, although you must be careful to make it clear that these guardians are in addition to the existing guardians, otherwise their appointment will replace the earlier appointments." However, the inherent danger of joint guardianship lies in potential conflict between the two parties in how the child should be brought up, as Jane warns. "If a dispute arises between guardians in respect of a child's upbringing then each guardian has the right to refer the matter to the court. For example, a guardian could apply for a residence order to determine where a child should live. It is possible, however, that the court would see no advantage in a child having several guardians in conflict with each other and it has the power to decide that, in the child's best interests, one guardian should cease to act. In practice, it is not usually necessary or desirable to have several guardians." If you have decided who will be your child(ren)'s legal guardian - well done! The next bit is to make it absolutely crystal clear in your will. But with the growing popularity of DIY legal documents, will you just pop into WH Smiths to buy one or sit down with a solicitor to get it done properly but pay more money for the privilege? Chelle is adamant that instructing a solicitor is the best route to take. "My husband and I both have wills that were drawn up by a solicitor. I don't like the self-written ones, especially when it comes to who would be the guardians of my children. For the sake of £100 or so that it costs to have the wills made and stored, it is worth it for peace of mind." Jane Mitchell agrees. "Writing your will is one of the most important things you should do. It is usually better to engage a solicitor to do this, since you can be confident that he or she will have the training and experience to advise you properly and help draw up a will best suited to your personal circumstances. Poorly drafted 'Do-it-Yourself' wills can cause significant problems and end up costing more for your family to sort after your death." One other aspect to be aware of is that circumstances change and therefore so must your will. If one of your preferred guardians suddenly became ill or had a humungous family of their own, they might not be able to take on the added responsibility of your child. "It is usually a good idea to review your will at least once every five years or as and when your personal circumstances change," advises Jane. "Once you have a will in place it is usually very easy to draw up a new one. Alternatively you could do a 'codicil' which is a short document updating the terms of an existing will." What happens if your will is contested? We have all seen TV dramas about put-out relatives contesting wills and swearing to win what's owed to them at all costs. It does happen and can be related to your decisions over legal guardianship, as Jane Mitchell explains. "Anyone (including disappointed grandparents) could apply to court after your death for a residence order in relation to the children and have themselves appointed as guardians in place of the people appointed by you. The court would, however, take all the circumstances into account in deciding what is best for the children, including your own wishes as set out in your Will." The final, and perhaps easier consideration is how your children should be looked after financially. This is less emotive than guardianship and should be an easier issue to deal with. However, there are still matters to be aware of, which is why we asked Jane Mitchell to tell us of the options open to you. "Parents can leave their estates outright to their children, even if those children are still minors," explains Jane. "Since a minor cannot, generally, receive assets transferred to him or her, the money or property intended for them would have to be held by an adult on a 'bare trust' (ie, the adult looks after the money or property for the child) until he or she reaches 18. "Many people, quite understandably, think that their children should not receive their inheritance at such an early age. Most parents, therefore, leave their estates in trust for their children. The terms of the trust are usually that the beneficiary (the child) is not entitled to capital until he or she reaches a certain age (often 21 or 25). "Whilst the assets are in the trust, the trustees (those adults appointed by the parent in their will to look after the money) are bound to invest the capital for the benefit of the children and accumulate the income. They can, however, be given full powers to apply income and capital, at their discretion, up to the full amount of the child's prospective share until he or she reaches the specified age. Since the trustees would be able to advance both income and capital to or for the benefit of the children (as an allowance direct to the child, or to the child's guardian), it is not essential to make further provision for the guardian. Many parents, however, choose to leave a legacy to the guardian to thank them for taking on the responsibility of looking after the children." Where to next?
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