insideKENT Magazine Issue 32 - November 2014 | Page 156
LAW
WHY APPOINT
A GUARDIAN FOR
YOUR CHILD?
Appointing a guardian for your
children can be overlooked when
making a Will. Clare Savory, a
specialist in Wills at Cripps, looks at
the best approach to tackle this
difficult decision.
Clare Savory
Ella was three when both of her parents were killed in an accident. Her
parents, Sarah and Pete, made Wills shortly after they married but these
had not been updated and did not appoint guardians, nor make financial
provision for Ella.
Sarah's parents thought they were best placed to look after Ella, but
so did Pete's sister Kim and her partner, and Pete's brother Ed and his
wife. The three couples were unable to agree and ended up in court.
The result was a costly fight that tore the family apart causing great
stress and grief at a time when all were still reeling from the death of their
loved ones. Worst of all, Ella lost her harmonious extended family, as well
as her mum and dad.
A legal guardian is appointed to care for a child in case both parents
die before the child reaches 18 years. You should appoint a guardian for
your children or the courts will do it for you if the worst should happen.
The guardian will make important decisions about your children’s life
in areas such as medical treatment and education, which will directly affect
how your children are schooled, how they are taught the difference between
right and wrong, and how they are supervised during their lives up to
adulthood.
How must the appointment be made?
You can appoint a guardian if you have parental responsibility for a child or
if you are an existing guardian. The appointment must be in writing, signed
and dated. It is good practice to appoint guardians in your Will because a
Will is less likely to be forgotten or mislaid after death than a separate, less
formal document. It will also enable you to make specific financial provision
for your child at the same time.
How will the guardians manage for money?
A guardian has no obligation to support your child from his own resources.
There are a few different ways to approach this issue using a Will:
• Following the death of both parents, most Wills leave the residuary estate
on trust for the children. The executors, as trustees, usually have powers
to use money held on trust for the benefit of the children or to pay it to
the guardian(s), to be used for the children’s benefit.
• Parents may include in their Wills a power for the trustees to loan money
to the guardians.
• Parents may wish to leave a cash gift to a guardian(s) that is conditional
upon the acceptance of the appointment as a simple thank you or the
cash gift may be intended to enable the guardians to improve their home
to accommodate the children.
• The parents can write a letter of wishes making clear how they would like
the trustees of their Wills to use their powers to provide financial support
for the children.
How to decide?
Many parents cannot decide who to appoint. If you are having difficulty,
here are a few things to think about:
• Who is most able to take on the responsibility of caring for a child –
emotionally, financially and physically?
• Whom do your children feel comfortable with already?
• Whose parenting style, values, and religious beliefs most closely match
your own?
• Would the person have enough time and energy to devote to your childr n?
e
• Would your children have to move far away, and would that pose any
problems?
• Does the person you’re considering have any other children? If so, would
your children fit in, or get lost in the shuffle?
For further information on guardianship or drafting a Will, contact Clare
Savory, Associate, on 01892 506 213 or [email protected].
About Cripps
Finally ask, can I live with that person taking care of my child? If your inner
voice says 'yes', appoint that person as guardian. If not, keep thinking.
Do discuss the appointment with the person you choose and find out
if they feel they can take on this responsibility.
What if my partner and I can’t agree?
It is best to name the same person as guardian to avoid conflicts. However,
if you both select different guardians under your Wills then these separately
appointed guardians must try to agree on all matters relating to your children’s
upbringing and education. If they disagree on important issues, they will
have to refer to the court.
www.cripps.co.uk
@crippslaw
Cripps is a key regional law firm
serving clients nationally and
internationally from offices in Kent
and London. Recognised countrywide
for both its commercial and private
client work and Legal Team of the
Year (Midsize) in the 2014/15 STEP
Private Client Awards, the firm focuses
on wealthier families, entrepreneurial
businesses and the real estate sector.
This article gives examples and is intended to give guidance only.
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