Solicitors’ Delay in preparing a Will – When is it Negligent?
In the unfortunate and very unlikely event that both you and your partner pass away leaving children under the age of 18 (“minor children”), you might consider incorporating a “guardianship clause” into your Will. This would give you peace of mind that your children have been left in the care of someone you trust.
A guardian would have the legal authority to make decisions on behalf of your child with regard to their upbringing, including decisions on with whom your child will live and where they will attend school. This is known as “parental responsibility”.
A child’s mother automatically has parental responsibility, as do both parents married to each other at the birth of the child. A father can acquire parental responsibility by marrying the mother or if he is named in a child arrangement order.
There were 2.9 million single parent families in the UK in 2016 and this figure is increasing. 15.3% of births in 2015 were registered jointly by parents living at separate addresses or registered by the mother alone. Single parents can’t assume (or don’t want to assume!) that the other parent will automatically become guardian if they die.
Why appoint a guardian?
It gives you an opportunity to carefully consider who should have parental responsibility if you die. Grandparents, although typically loving towards their grandchildren, may be an inappropriate choice if they’re heading into old age.
Your appointed guardian isn’t bound to accept the appointment and forewarning your appointed guardian could reassure you that your appointee is willing to take parental responsibility.
When does the guardian appointment take effect?
The appointment of a guardian takes effect on the death of the person who made it only if the deceased had parental responsibility; it ends automatically when the child reaches 18 years of age.
Important points to consider
A guardian does not have an obligation to support a child using their own resources. Although guardians can apply for a Guardian’s Allowance to maintain a child, you should consider allowing your trustees to apply income or capital from your estate to go towards your children’s maintenance, education or benefit.
A letter of wishes (though not binding) could give guidance to your trustees on how they should use money from your estate to benefit your children. You may express a wish for monies to pay for school fees, for example. Similarly, trustees could apply income or capital from your estate to your guardian to accommodate your children, for example, to buy a larger house or adapt their current house. Otherwise, money will be held on trust for your children upon them attaining the age of 18, 21 or 25 (whichever age you specify in your Will).
You might also consider a “pecuniary legacy”, a cash gift, by way of thanks for acting as guardian.
What if you don't appoint a guardian?
The chances are that your children would be staying with family or friends at the time of your death. That arrangement would likely continue on a temporary basis, formalised by an interim court order. In extreme circumstances, the court could grant temporary parental responsibility to a local authority.
During such temporary arrangements, the court would make an assessment on what is best for your children in the long-term. Arrangements would be formalised in either a care or supervision order. A care order involves implementing a plan detailing information such as with whom your children will live, have contact with and other practical considerations like medical support. A supervision order effectively means managing, advising and befriending your children. Such an order is typically used for ‘older’ children.
For more information in relation to appointing a guardian or making a Will, please contact any member of our private client team.
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