Something happens to you and your partner, leaving the children with no one to care for them. It’s the nightmare scenario. Perhaps because it is so unthinkable we tend to assume that such awful things can never happen to us.
Sadly, we know such things can happen. And when they do, the consequences for families can be even more devastating if no provisions have been made.
Who will look after the children and bring them up in line with your wishes? How will they survive financially? Remember children under 16 have very limited legal capacity. If ever there was a reason to ensure you have a Will, surely this is it.
If children are under 16 a Will can provide for the appointment of a guardian or guardians until they become adults – allowing parents to be secure in the knowledge that if the worst was to happen then they have someone they trust to look after the interests of their children.
Alison Atack, Partner in Lindsays Private Client team states: “More and more parents are appreciating the sense of careful planning, even in this most delicate of areas. Clearly, a vital consideration is the choice of guardian which should be informed by appointing someone who:
- Has the same values as you, is suitable, trustworthy and honest
- Has significant parenting skills
- Can offer a stable family environment
- Has a good relationship already with the children
- Is willing and able to act and can do so on a long term basis - to be effective on death the guardian has to accept the appointment
- Your children get on well with - you must discuss the subject with them, however painful
“In these discussions the role and remit of the proposed guardians must be clearly understood by all concerned. They would look after the day to day care of the children, make decisions about upbringing, finances, education, health and welfare, contract and litigate on their behalf - generally do all the parents would have done for them if alive.
“We would advise that your choice of appointee should be subject to review, with an eye on possibilities such as separation, divorce, their leaving the country or for some reason no longer being willing or able to carry out the functions expected of them.
“Additionally, there is a proviso that if the guardians are considered as inappropriate then it is open for interested parties to approach the court requesting their removal. However, it would have to be a very good and sound reason and in the children's best interest for the Court to reverse the written appointment accepted by the guardian.”
Subject to the provision above, a guardian appointed in writing in your Will automatically acquires the full complement of rights and responsibilities of the parent on the death of the parent.
Alison continues: “While we all hope this scenario is one we never have to deal with, it does underline the importance of making your own choice of who you want to stand in your shoes, should the worst happen, when your children are under the age of 16.”
Please contact a member of our team if you wish to discuss planning ahead and putting a Will in place to ensure provisions are made for your children, should the worst happen.
