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The guardianship dilemma
Article date: 09/03/2017
Thousands of new mums are looking forward to celebrating their first Mother's Day later this month, on Sunday, March 26.
Among them is Alison Chaloner, a solicitor in the Private Client team at West Midlands' law firm Higgs & Son. Alison says: "When meeting clients with young children for the first time, the question I am most commonly asked is 'what will happen to my children if I die?' As a mum to a ten month old little boy myself, I appreciate just how hard this subject is to think about."
It is estimated that in 2015, 23,600 parents died in the UK, leaving dependent children - the equivalent to one parent every 22 minutes. In the majority of cases, if a parent dies, any children will be cared for by the surviving parent. In the tragic event that both parents die before the children reach the age of 18, what happens to those children will depend on whether or not the parents have appointed a guardian.
Alison says: "Guardians are most commonly appointed by way of a will. As a solicitor specialising in the drafting of wills, I regularly guide clients through the formalities of preparing a document that deals with both the financial provision for children, as well as advising on appointing a guardian to care for their children on a day-to-day basis.
"The choice of guardianship is a highly emotive and often very difficult decision to make. It can involve choosing one family member over another, or friends over family. Clients often express their worry about offending those who may expect to be appointed. In fact, trying to pick the right person to look after the health and welfare of their children can be so difficult that it puts some parents off signing their will altogether.
"However, in the event that both parents die without appointing guardians, the decision as to who will have responsibility for their children rests with the court. This exposes the children to a risk of family disputes and court battles at an already incredibly traumatic time.
"Children can even end up in foster care whilst the court rules on guardianship. It is therefore really important to think through the issues at stake, make a decision on guardianship and sign a properly drawn will - rather than let the enormity of the task stand in the way of making a decision."
Where clients are unsure who to appoint, Alison advises them to give thought to the following:
Where would the children live? Do the chosen guardians live nearby? If not, would they be happy for their children to move to a different area to live with the guardians? Alternatively, would the guardians be prepared to move so that their children could remain at the same school and keep the same friends.
Consider not only now but the future?
Grandparents are often the obvious choice and most likely love spending time with their young grandchildren. But how well would they cope if they were 10 years older and their little grandchild an adolescent teenager?
Do the guardians have similar values?
Are they comfortable with the decisions that their guardians would make about matters such as medical treatment, schooling and holidays, etc.
Can the guardians cope financially?
Where parents wish to leave their assets directly to their children in their will, it will be held on trust for those children until they are 18 years old (unless a greater age has been specified in the will). The assets will not pass to the guardians, but will instead be managed by the executors of the will. Are the parents comfortable that their chosen guardians could cope financially? If not, they may wish to consider leaving a legacy to them in the will.
"I also advise having an open and frank discussion with the people my clients wish to appoint as guardians," adds Alison. "Firstly, to confirm that they would be willing to take on the role, but also, so that they are aware of the parents' wishes and feelings on matters that are important to them.
"Finally, once the children are old enough to understand and not be frightened by the conversation, I advise that it is helpful to discuss the choice of guardians with the children themselves."
Higgs & Sons boasts more than 100 specialist lawyers including those with particular expertise and experience in all aspects of private client work including wills, lasting powers of attorney, administration of estates, trusts and estate planning.