Appointing legal guardians for minor children
Learning how to appoint a legal guardian has always been one of the most important aspects of our business. It is never too early to make a Will, and we should all most certainly do it once we have got children.
Food for thought: A parent has a young child and has to go away for a month. It goes without saying that they would make the necessary arrangements for the child to be looked after. A parent has a young child and has to go away for just a couple of hours even, you would still make those arrangements to care of your children. So surely if a parent had to go away forever and never come home, surely they should make those arrangements.
A recent survey suggests quite startling statistics, & emphasizes the practical considerations on why you should have a will in place:
Only 21% of parents who still have children living at home have made a Will.
As many as 31% of parents with minor children who have made a Will failed to appoint legal guardians for their children in that Will.
When the two above statistics are added together a massive 88% of parents with minor children have not appointed guardians for their children.
Every 22 minutes in the UK a child below the age of 18 loses a parent.
That means 24,000 deaths per year where a bereaved child is involved.
How to appoint a legal guardian
A minor child does not reach the age of majority until they are eighteen. Until then it is essential that any parent should use their Will to appoint legal guardians to assume parental responsibility for a minor child. Here are a few tips to bear in mind when appointing legal guardians for your minor children whilst writing your Will:
The first and most obvious question is who would you want to appoint as legal guardians for your children? Statutory law is largely silent on this issue, and in the absence of a Will, it is ultimately a court decide who looks after a child. Tragically this can mean periods of foster care or residential care for an orphaned child whilst the courts arrive at their decisions, something any parent would want to avoid for their children.
When considering who to appoint as legal guardians there are a few main points which you should consider:
The child should already have an existing relationship with the legal guardian.
Existing arrangements such as the child’s education and social life should be preserved to the best of your ability. Disruption of the child’s existing lifestyle should be kept to an absolute minimum.
The legal guardians should have the physical space, time, and ability to take on the responsibility of being a legal guardian.
Such things as the child’s faith or religion should not be compromised by your choice of legal guardian.
The ongoing personal safety of the child is obviously paramount and should not be compromised in any way.
Where possible, siblings should not be forced apart by any appointment of legal guardians.
Before making your Will you should always talk to the people you have in mind as legal guardians, and if necessary talk to your children as well, to be absolutely clear you are making the right choice.
The next question is who would you want to appoint as Trustees to look after your children’s money? Statutory law does not allow a child below eighteen to have control of the money they inherit until they are of age, and until then it has to sit in trust on statutory terms. In the absence of a Will you have no power over who is going to be appointed as Trustees for your children’s money, and therefore gains control of your estate.
Making a Will means that you not only appoint legal guardians of your own choice to look after your children but also Trustees of your own choice to control the finances from the estate (legal guardians and Trustees can be the same people if you wish). Again talk to the people you have in mind before making your Will to be absolutely clear you are making the right choice.
Would sufficient money be available to your chosen Trustees for your children’s welfare and education? Be ready to ask us how we can set up trusts in your Will to ring-fence and protect your money, but also ensure it is available to your legal guardians to adequately finance your children’s upbringing. It may be necessary to consider other factors, such as reviewing your life assurance arrangements, whilst making your Will.
Would you actually want your children than to inherit and assume control of a potentially vast sum of money at the tender age of eighteen? This is the age at which statutory law deems a minor to come of age. Maybe you would prefer it to be twenty-one or even older age. We can offer comprehensive advice on the implications of setting up trusts so that your chosen Trustees remain in control of finances for as long as you deem appropriate.
There could well be a number of other potential complications where the ongoing protection of minor children is concerned. What if the surviving parent remarried after your death? Could this disadvantage your children, and what can be done about it? What if you do have children, but not with your current spouse or partner? What if your current spouse or partner has children of their own from a previous relationship?. Be ready to ask us any of these questions if they are important to you. We will be able to tailor our advice to any specific circumstances at your request.
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