The importance of appointing a guardian in your will

The importance of appointing a guardian in your will

The importance of appointing a guardian in your will

Yes, it’s an awful thought, let alone to say out loud, but who would care for your children if you died?

If your children are under the age of 18, have you thought about making sure your will states who should care for them in the event that both parents pass away?

What to put in your will if your children are under 18

A guardianship clause in your will can offer some peace of mind. It gives you the knowledge that your children will be looked after by someone you trust should you die. Taking these steps now can also go some way to ensuring that, at what would be a very difficult time for your children, disruption and upheaval would be kept to a minimum.

How does a guardianship clause work?

A guardianship clause will only take effect once everyone with parental responsibility has died. It is therefore sensible to have a conversation with anyone else who has parental responsibility to make sure that you are both likeminded in who you are intending to appoint as your guardian.

Why should you have a guardianship clause in your will?

It is easy to overlook the importance of appointing a guardian by assuming that your family members will automatically take care of this. However, it is not enough to rely on an assumption as nothing is certain and, for example, consider the difficulties that may arise should a family fall-out occur. Or, it may be the case that there are certain people that you consider to be more appropriate than others to care for your children and having a guardianship clause in your will to set that out can avoid potential conflict and uncertainty.  

What does a guardian have to do?

A guardian will be responsible for making important life decisions on behalf of your children, e.g. decisions about their education, general upbringing and lifestyle. A guardianship clause will provide you with an important opportunity to make a decision about who should take that control. This will allow you to feel as confident as possible that you have made the best possible plans for your children’s future and security.

3 points when considering who to appoint as guardian for your children

  1. Future decisions: Who is most likely make similar decisions to those that you would have made yourself for your children?
  2. Practical factors: your guardian’s age, location and current situation may need to be considered.
  3. Values: Do you want your choice of guardian to have a similar values and outlook in life as you do?

Suggestions to guide your guardian

It is also advisable to leave a letter of wishes with your will. This allows you to give some guidance to your guardian as to how you would like them to act and things you would like them to consider when making decisions for your children. This may offer them some comfort to know that they are following your wishes. In addition, money being held on trust for your children by your trustees can be released, as appropriate, whilst they are a minor. This must be justified as being for “reasonable purposes” and a letter of wishes will also allow you to guide your trustees on what you would consider “reasonable”.

Finally, a guardian is not bound to accept their appointment and it is therefore extremely wise to have a conversation with them first to ensure that it is something that they would be comfortable to do. Otherwise, the purpose and benefit of making these provisions may fail at the first hurdle. On a positive note, if they’re willing to accept the guardianship at least you know you have done as much as possible to protect your children, even if you’re no longer around.

For more advice about setting up a guardianship clause or to make your will please call Chelsea Baggot on 0113 320 5000 or email Chelseab@winstonsolicitors.co.uk

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