“There is no way your mother is looking after my kids, no way!”

“My mother is the only choice as far as I’m concerned… your mother has a better relationship with her dogs, than she does you, let alone our children… and don’t even get me started on your Dad!”

Not the nicest conversation to hear over dinner with friends, but believe me; this is a discussion I have heard many times regarding the issue of guardian(s) of children, [if the unfortunate should happen to the parents, and children will need a guardian of choice].

During a recent dinner with some friends, we happened upon the subject of who would be the guardians of my friends’ children if the worst happened and both parents were to pass away, while the children were under 18. An active ‘conversation’ (along the lines of the argument above) ensued and unfortunately the parents hadn’t had this discussion before and didn’t agree with each other’s initial choices.

This is an extremely common situation and often means that parents of young children who can’t decide who should be the guardians end up ignoring the issue and fail to put the appropriate plans in place. The risks of not tackling this issue, regardless of how heated or emotive the discussion may become, is that if the worst did happen, there could be family arguments, uncertainty for the children at a difficult time and it is likely the Court would need to be involved to appoint a guardian.

The only way to avoid potential problems is to address the issue and choose the guardians you think are suitable and would carry out your wishes for your children’s future. Here’s a few helpful things to consider:

Decision making

You can appoint guardians for your child(ren) if you, the parents, were to die before a child is 18.  The guardians will make all the decisions relating to the child, such as where they live, education and medical decisions.

Who can appoint guardians?

Any person who has Parental Responsibility (PR) for the child. The mother automatically has PR but a father who is not married to the child’s mother may not automatically have PR.

It is usually best for the parents to agree on who to appoint as guardians. If there are different guardians appointed, it will only be the guardian of the second person to die who takes up the position.

How do you appoint guardians?

This must be in writing, signed and dated so appointing guardians in a Will is the most appropriate form.

Who can be appointed as a guardian?

Any individual, however you can appoint more than one to act jointly as guardians.

What about my wishes?

You can include conditions about the guardian appointment. For example, a guardian can act until they reach a certain age, a married couple can act but only if married at the time, a substitution guardian can be named if the original person can’t act (or doesn’t want to).

It’s also a good idea to put together a Letter of Wishes to the named guardians explaining your wishes for your child/children’s upbringing. This document is not binding but gives the guardians an idea of what you would like and it will be considered by the Court if there is a dispute.  Setting out your wishes can be helpful to the guardian but also gives you peace of mind that they know what you would have wanted.

You can also ensure that the financial aspects of your Will are aligned with the appointment of the guardians to allow money to be available to assist them with bringing up the children.

If you would like to discuss the points raised in this post in more detail please contact us.

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Katherine Miller

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