Choosing a legal guardian for your children in your will

In our experience of meeting with clients to discuss writing their will, often the hardest part is not deciding where their assets will go upon their death, but rather the difficult question of who they would want to act as the legal guardian of their children under the age of 18.

Sometimes there may be more than one obvious choice; and you may not want to offend one family member by choosing another. Or there may be a clash where one parent wishes for a member of their family to be appointed and the other is adamant that their family member or friend would be better suited. Or you may feel like you do not know anyone who you would trust with the responsibility. It can certainly be a difficult decision for parents to make.

It is especially important if the parents of a child are no longer in a relationship. If one parent dies, the surviving parent will most likely have parental responsibility for the child and therefore, they will automatically be responsible for the child. This will be the case, even if the deceased parent would have preferred the child to be cared for by someone else, such as another family member. Careful consideration and advice is therefore recommended on relationship breakdown, to plan for the terrible possibility that a parent may die while a child is still under the age of 18, to ensure that both parents are in agreement (so far as possible). The priority is always what is in the best interests of the child, and an assessment by Social Services or an application for a Special Guardianship Order may be required in some situations.

It is often helpful to remember that your will is a working document and what may be the right decision for your children now, may not be right for them in five years’ time and so you should review and update your will regularly.

It is also helpful to prepare a letter of wishes to accompany your will, addressed to your appointed legal guardians, detailing exactly how you would like your children to be cared for, if you were to die. This can include guidance on how you would like your children to be educated, how often they visit other family members and friends, as well as asking your legal guardians to consult particular family members before making certain decisions.

Despite feeling like a very difficult choice, our experience is that clients often feel a huge sense of relief once their will has been signed, knowing that they can have peace of mind that their children would be well cared for if the worst was to happen.