Guardian

Guardians

When people with minor (aged under eighteen) children are asked about writing a Will they often miss the main reason of doing so. The responses they most commonly give are usually along the lines of “I don’t own enough to need a Will.” or “I’m not going to die any time soon.” This approach is far from surprising when you consider that 57% of parents haven’t made a Will.

Of course, what most people with minor children fail to realise is that the main reason for making a Will is not to direct how their assets are distributed, but to ensure that they nominate the individuals whom they wish to bring up their minor children; the guardians. A guardian is someone who takes on parental responsibility over a child when the child’s parents die before the child reaches the age of 18. If both parents of such a child die without leaving a Will that appoints a guardian, it is down to the court to appoint the guardian and this may not necessarily be who the parents would have intended the guardian to be. So the person left to make fundamental decisions about a child’s upbringing, how they are educated, what religion they observe, whether they are raised as a vegetarian, etc. could end up being the last person the child’s parents actually wanted. It is no coincidence that when deciding upon appointing guardians, people often deliberate longer than they do when deciding who receives their assets. It is not a decision to be made lightly or, indeed, without having discussed it with the potential guardians first.

It is also possible to put measures in place within a Will to assist guardians to best carry out their role with the minimum of hindrance. Some of the most common methods are as follows:

  • Assets left in trust for the children to inherit at the age of 18 can be made available to the guardians by the trustees if the intended use of the asset is for either the education, maintenance or welfare of the children even if they have yet to reach the age of 18
  • A cash legacy in favour of the guardian, on the condition that they actually take on the role of course, can help to ensure that the guardian is never left out of pocket while carrying out the duty of bringing up someone else’s children
  • Provision can be provided for funds to be made available to the guardian to buy a bigger house in which to raise the children, with the loan secured against the property so as not to financially burden the guardian

Parents can also write a letter of wishes to give guidance to the guardians on how they would like to see any funds used and how they would like their children to be raised. Whilst such a letter would not be in any way binding, parents still hope to ensure that their children are cared for whatever the circumstances by laying out as many guidelines as possible. It is also sensible to appoint reserved guardians who can step in should the first-choice guardians be either unwilling or unable to take on the role when the time comes.

If you would like to meet with one of our Consultants to discuss any of the issues raised here or any other Estate Planning topic please telephone 01732 868190 or click here.

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