13 April 2021

We discuss the difficult question some parents might have to face: “Who looks after my children if I die?” and outlines what provisions parents can make to ensure their children are looked after should the unimaginable happen.

Naturally, all parents hope to live and see their children enjoy long lives. So, it can be uncomfortable to imagine passing away leaving a young child behind. It is a very common misconception that, if the worst was to happen, a family member will automatically step in such as a grandparent or the parent’s siblings. However, as with most aspects of succession law, this is not the case! If you have not put in place the appropriate arrangements, it falls to the court to decide what should happen next.

So what should I do?

If you are parent to a child under 18, you should consider putting a Will in place. As well as the usual benefits that a Will can provide upon death, this document allows you to appoint a ‘Guardian’ for your children.

The Guardian will inherit the parental rights and responsibilities normally bestowed on a parent. These include the responsibilities to safeguard and promote the child’s health, development and welfare, the right to residence of the child, powers to act as the legal representative, and also to control, direct and guide the child’s upbringing. Effectively, this means they control all welfare aspects of the child’s life, including where they live, the manner in which they receive an education and how they are generally brought up.

The appointment, as always, is dependent on the proposed guardian accepting their role. Therefore, it is important to discuss your wishes with anyone who you intend to appoint to ensure they are happy to accept the responsibility. By doing so, parents can also communicate any specific wishes they have for their child’s future. This can later be reinforced by a written Letter of Wishes.

In the situation where there is a surviving parent both parties share the parental rights and responsibilities and exercise these together. This can be preferable for divorced families or any families looking to share the responsibility of child guardianship. In the event of any disagreements between an appointed guardian and a surviving parent, the court can step in to make decisions about the future care of the child. Of course, provision can be made for a guardianship appointment to come into effect on the second death only, if preferred.

What if I die without appointing a guardian?

When both parents die leaving a child without appointing a suitable guardian, the care of the child falls to the Local Authority in the first instance. In this case, the Local Authority would act as guardian and make decisions on the child’s behalf.

If a friend or family member wishes to be appointed as guardian instead, they would need to apply to a court to prove they are best placed to care for the child. This is a long and complicated process and can be very onerous for the applicant and the child. The process can also take years for a guardianship order to be granted. In contrast to an appointment by Will, the applicant would also be required to submit annual audit reports to the court and seek further consent for large decisions over the course of the child’s life.

How can BTO help?

For all young parents, we would strongly recommend appointing a Guardian by putting a Will in place. This ensures you know who will be caring for your child and have had an opportunity to discuss your wishes with that person. Appointing a guardian also removes the possibility that the local authority will become responsible for your child and ensures that would-be guardians do not need to be involved in a costly and lengthy court action.

The BTO Personal team has in-depth experience of assisting with family and succession planning. We can advise you of the options available, guide you in your decisions and provide a robust, legally valid Will document. If you would like to discuss this topic further, please do not hesitate to get in touch.

In Part 2 of this blog, we will consider the best ways to secure your child’s financial affairs in the event of your death.

For more information, please contact a member of our Wills, Estates & Succession Planning team.