Who will look after my children if I pass?

Who will look after my children
Photo by bruce mars on Unsplash
Jude Fletcher
Jude Fletcher
Senior Partner
Fletcher Day

These days, most parents have a very good chance of living until their children reach the age of 18 (and, indeed, well beyond).

Sadly, however, there are never any guarantees. This means that all parents need to think about what will happen to their children if they die (or become incapacitated).

Here is a quick guide to help.

Understanding parental responsibility and guardianship

In simple terms, parents have parental responsibility. People appointed by parents can have guardianship. Guardianship essentially confers the same rights and obligations as parental responsibility.

There is a bit of nuance here in that only mothers have automatic parental responsibility. Fathers have to acquire parental responsibility. There are various ways to do this. The two main ones are to be named on the child’s birth certificate or to marry the child’s mother. For clarity, a marriage cannot overrule any parental rights already held by another man.

A child must always have at least one parent or guardian. If a child does not have at least one parent then at least one guardian must be appointed for them. There are basically two ways this guardian can be appointed. Either one or both parents must name them or a court will appoint them. For many reasons, it’s vastly preferable for it to be the former.

Naming a guardian

You can name a guardian in any legally-valid document. The two most obvious documents are your will and a lasting power of attorney (LPA). Your attorney effectively has temporary guardianship of your children while you are incapacitated.

The first major advantage of naming a guardian yourself is that (barring unforeseeable circumstances) you are guaranteed to have the person of your choice look after your child. The second major advantage of naming a guardian yourself is that you ensure seamless care for your child.

If a court has to appoint a guardian for your child, they will appoint the person they consider most suitable as quickly as they can. They may come to the same conclusions as you with minimal disruption to your child. On the other hand, they may not. Even if they do, your child may have to endure a period of uncertainty, possibly in foster care.

In fact, in a worst-case scenario, your child may become subject to an extensive, legal “tug-of-love” as different parties compete for their guardianship. Possibly, the harshest reality of these situations is that generally everybody involved is genuinely trying to act in the child’s best interests while creating a nightmare scenario for them.

Keeping guardianship paperwork up-to-date

Ideally, you should have guardianship arrangements in place before your child is even born. Remember that it is now possible for doctors to be able to save an unborn baby after the death of the mother. You should review guardianship documents periodically (at least every three years) and update them in the light of any major life events, particularly remarriage.

The reason for reviewing guardianship documents is, quite simply, that times move on. People may not love your children the less for it but they may become less capable of looking after them. Realistically, this is likely to be particularly true of older relatives such as grandparents.

The reason for reviewing your guardianship documents after significant life events is that significant life events tend to have legal repercussions. Possibly the most obvious example of this is remarriage.

Guardianship and remarriage

It is becoming increasingly common for parents to end a relationship and remarry while they still have minor children. It’s therefore increasingly important to understand what this means in legal terms.

Firstly, the issue of parental responsibility should have been dealt with as part of the separation process. This applies regardless of whether or not the parents were actually married. Assuming this has happened and both parents are still alive both parents have equal parental responsibility. Again, this applies regardless of practical arrangements.

Secondly, a remarriage (by either party) does not invalidate any pre-existing parental rights or responsibilities. Under current laws, however, it does invalidate any previous will unless that previous will was clearly made with the forthcoming marriage in mind.

This means that you must update your will to reflect your new marital status. Ideally, you should do this before the marriage happens. This is really the only way to avoid any risk of your children losing out on an inheritance if you die shortly after your marriage.

Protecting your children against (another) divorce

On a similar note, if you already have children, you may want to think about how they would be financially impacted if a subsequent marriage were to end in divorce. Protecting their interests may require you to come to a prenuptial agreement with your future partner.

This might then need to be updated to a postnuptial agreement, particularly if you had more children. The arrival of future children might also be a good time to review guardianship arrangements. Essentially, you’d need to think about whether you want to prioritize keeping your current children with their full “blood” family or with their new half-sibling(s).

Wills and trusts

Wills essentially deal with the division of your estate upon your death. As such, they do not directly concern themselves with the long-term care and maintenance of your property. They may, however, be supplemented by other documents which do. In the context of your children, the key legal document is likely to be a trust.

There are two good arguments in favour of creating a trust for your children. Firstly, it can help to lower your estate’s Inheritance Tax liability. The less money goes to HMRC the more there is for your children.

For most people, the main way a trust can reduce your IHT bill is by allowing you to have the proceeds from a life insurance policy paid directly into it. This separates the disbursement from your estate. You can also move other assets into it during your lifetime thus separating them from your estate.

Secondly, trusts allow you to exercise some control over how your child’s inheritance is used. You can even keep some level of control when your child is legally an adult.

About Jude Fletcher

Jude Fletcher is the senior partner at Fletcher Day, a full service commercial law firm in London, with an experienced team of Lawyers who specialise in family law, property law and employment and immigration law.

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