Who would care for your children if you were no longer able to?

When people think about making a will, they often focus on who will inherit their money, property and possessions. However, one of the most important decisions a parent can make in a will is choosing who would care for their children if the worst were to happen.

In this article, Michelle Gavin, partner in the Private Client team at Lodders, explains how appointing a guardian in your will can help protect your children’s future, and why it is important to consider the practical and financial implications.

Appointing a guardian

A will allows parents to appoint a guardian (known legally as a testamentary guardian). If there is no parent able to exercise parental responsibility, the guardian named in the will can assume responsibility for a child’s upbringing, education and welfare. A guardian can make many of the important decisions that a parent would ordinarily make, helping to provide stability and continuity during what would undoubtedly be a difficult time.

Choosing a guardian is about much more than deciding who you trust. Parents may wish to ask themselves:

• Would my children be able to remain close to friends and family?
• Could they continue attending the same school?
• Does my chosen guardian have the time, space and willingness to take on this responsibility?
• Have I discussed my wishes with them beforehand?
• Is there someone else I would want to appoint as a substitute if my first choice were unable to act?

Whilst most parents would like their children to experience as little disruption as possible, this is not always practical. In practice, children will often live with their guardian, which may involve changes to their home, schooling or day to day routine. Thinking through these issues in advance can help ensure the right people are appointed.

A well-known example is Michael Jackson, who named guardians for his children in his will and provided for alternative appointments if his first choice could not act. Whilst most families will never face such circumstances, the principle is the same: recording your wishes can help avoid uncertainty at an already difficult time.

It is important to remember that appointing a guardian in your will does not automatically override the rights of a surviving parent who has parental responsibility. The effect of a guardianship appointment will depend on the family circumstances at the relevant time.

Financial considerations

It is equally important to consider the financial implications. Guardians are not generally expected to support children from their own resources. A carefully drafted will can ensure that funds are held and managed for a child’s benefit, allowing trustees to use estate assets to help meet the costs of their upbringing, education and welfare.

Many parents also review their life insurance arrangements to ensure adequate financial support would be available if needed. A financial planner can help assess whether sufficient resources would be available to support a child’s needs through to adulthood.

A letter of wishes

Appointing a guardian is only part of the picture. Many parents also prepare a letter of wishes alongside their will.

Whilst not legally binding, a letter of wishes allows parents to provide guidance to guardians and trustees about how they would like their children to be raised. This may include views on education, religious upbringing, family values, extracurricular activities or where they would ideally like their children to live. It can also provide guidance on how money held for the children should be used to support their upbringing and welfare.

Choosing a guardian is not only about deciding who you would like to take on the role. Some parents also have clear views about individuals whom they would not consider suitable. A letter of wishes can explain those concerns and provide guidance to guardians, trustees and executors about the parents’ views. It may also set out the level of involvement the parents would ideally like particular family members to have in their children’s lives.

A letter of wishes can be particularly valuable because it provides guidance whilst retaining flexibility for those making decisions in the future. Whilst it is not legally binding, it can help ensure that those responsible for a child’s care understand what matters most to their parents.

Peace of mind for the future

No parent likes to contemplate these circumstances, but putting the appropriate arrangements in place can provide invaluable peace of mind.

By making a will, appointing suitable guardians and recording your wishes for your children’s future care, you can help ensure that the people making decisions on their behalf understand what matters most to you, rather than having to make those decisions without any guidance.

At Lodders, our Private Client team regularly advises parents on wills, estate planning and the appointment of guardians. If you would like to discuss making or updating your Will, we would be delighted to help. Get in touch with the team here.