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Back to school - the homework every parent should be completing

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With the summer holidays coming to an end, many children (and parents) will be looking forward to the start of a new school year. Now is the perfect time to reflect on the past few weeks spent with your children and consider whether they would be protected if the worst were to happen. Who would look after your children? Have you made adequate financial provision for your family?    

According to the Office for National Statistics, there were 14 million dependent children living in families in the UK in 2017. But with only one third of adults having a valid Will in place there is a risk that for many people, their families may not be looked after as they would wish on their death.

What is a guardian?

The role of a guardian is extremely important, as their job is to raise a child until they reach the age of 18. They will acquire Parental Responsibility (PR) for the child which means they “step into the shoes” of a parent and acquire all the same rights and responsibilities such as providing a home and living with the child, deciding on their education and approving medical treatment.

What is the law?

The important rule to remember is that the appointment of a guardian will only take effect if both parents with parental responsibility have died. If only one parent dies, and the other has parental responsibility, that surviving parent will be solely responsible for bringing up the child.

Whilst the mother of a child will always have parental responsibility, not every father will. He will only have parental responsibility in the following situations:

·         If the mother and father were married at the time the child was born, or later get married during the child’s lifetime

·         The father is named on the birth certificate and the child was born on or after 1 December 2003

·         The father enters in a parental responsibility agreement with the mother

·         The Court grants a parental responsibility order or a child arrangements order. 

This can cause difficulties if parents have separated or there are disagreements in the family as to who should look after the child.

Why does it matter?

If a child is left without any living parents with parental responsibility the Court will appoint a guardian on their behalf.  This will be the case even if family and friends have made arrangements between themselves as to who should look after the child. A Judge may not necessarily choose the person or people you would have appointed, which could make it harder for the child.

Who should I appoint?

A guardian can be anyone over the age of 18 and could be a family member or close friend or a combination of both. However you should think carefully about who you chose as guardians. Various factors should be considered such as their age, location, resources, the person’s own family and circumstances and their relationship with your child. You should always speak with your chosen guardians first to check they would be willing and able to take on the role.

What about the cost?

Parents should also consider how the guardians would manage financially if they were required to raise their children. If money is being looked after in a trust for children until they reach 18, then the trustees have power to allow the money in the trust to be used for the benefit of the children, for example to help with school fees. Many parents choose to write a letter of wishes setting out how the trustees should use the money in the trust to provide for their children. Alternatively, you could leave a sum of money in the Will to help the guardians with care costs.

If you wish to discuss the appointment of guardians further or you wish to make a Will please speak to a member of the private client team at one of our four offices.