Major decision about minors

Some clients have an informal agreement with relatives to look after each other’s children if the worst should happen. Appointing guardians doesn’t have to be made in a will – although this is better – but it does need to be in writing, signed and dated. Without a formal appointment, an application to the court must be made before any guardian can have parental responsibility.

‘Parental responsibility’ is a buzz phrase for family lawyers, and private clients solicitors must know about it in the context of wills. It is easy to assume when a parent makes a will that they have responsibility for their own children, but it is very important to double-check.

If both parents are married to one another, it is not usually a problem, but it could be if the couple are unmarried, separated or divorced. A father who is not married to the child’s mother may be surprised to learn that he does not automatically have parental responsibility and may need to check whether he has acquired it. If parents divorce and remarry, the new spouse(s) could even have parental responsibility, which could complicate matters.

So who should be appointed? There is no legal limit on the number of people that can be guardians for a child, but it is better kept to one or two. I always encourage clients to ask guardians whether they are happy to be appointed and, ideally, to discuss how things should work, or to have a letter of wishes setting this out.

Where and with whom should the child live? Will the child be able to go to the same school, see their friends and continue their hobbies? Does the guardian share and understand your values in terms of education and general upbringing?

Money matters

Then there are the financials. Guardians do not have an obligation to support the child from their own resources, so parents must think about how the child is to be maintained. I usually encourage using a discretionary trust, with the guardians as one or more of the trustees along with another neutral party or close family member.

The guardians can use the money in the trust for the child’s benefit, but the other trustee can check that the guardian is using that money properly or, as is sometimes the case, make sure the guardian isn’t trying to scrape by without wanting to use the trust monies for precisely what they are there for.

Although guardians are entitled to be reimbursed for their expenses, there are likely to be other associated costs that come out of their pockets, such as making changes to their home, moving or amending their working arrangements or lifestyle.

Parents could leave guardians a separate gift for their own use if this is a concern, but most prefer the trust arrangement. One client told me he’d feel as though he was “paying” someone for taking care of his children.

But listen for the faint alarm bells when dealing with the will of a divorced parent who
has minor children. Generally, each parent is entitled to appoint their own guardians. If the parents are not on speaking terms, however, they often want different people.

What they don’t realise is that those people will be joint guardians on the death of the survivor. This will cause complications and clashes that are definitely not in the child’s best interests.

I encourage parents to coordinate if they can and agree on the same people.

Fay Copeland is partner and head of private client at Wedlake Bell

She writes the regular comment on inheritance in Private Client Adviser

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