Wills & Probate: Assumptions about Guardianship

family wills probate

5 Assumptions about Guardianship

People wrongly assume that the people closest to them will be automatic guardians and would just take over their children’s care if the worst happened.

This is not always the case:

X – I am not married to the father of my children but he would automatically get guardianship if I died

If biological parents are not married a father can acquire parental responsibility by being listed on the birth certificate or getting a court order that grants him parental responsibility. He won’t automatically become the legal guardian.

X – My mother will have the children- she looks after them most of the time anyway

Unless a person is specified as an appointed guardian in a will or letter or wish this will not automatically happen. In some cases where an appointment is contested the court may have to intervene to draw up an order and formalize the guardianship. There is even a risk that the children may be taken into the care of the local authority while the guardianship is solidified.

X – My Ex Husband never spends any time with the children and I want to appoint someone else

If you were married to the father of your children when they were born your ex has parental responsibility and will automatically become guardian when you die. You are however able to specify an additional guardian in your will in case your ex is unable or unwilling to act. If your divorce settlement included a residence order you can appoint someone to be a joint guardian with your ex and they would have joint parental responsibility. You can also appoint your executor to act as a trustee of money for your children to ensure that you ex does not benefit financially.

X – I want to choose a different guardian to the one chosen by my husband/wife

If parents appoint separate guardians then both guardians must work together to agree on important decisions, otherwise the court will intervene and decide who gets guardianship.

X – We have godparents already!

While godparents have an important role in the moral guidance of a child’s upbringing they have no legal rights in the event of parental death. If you want your children’s godparents to become legal guardians they must be appointed in a will.

Else Solicitors have a dedicated team with a wealth of experience to help you deal with these personal matters. For more information and an initial discussion please contact Kathryn Caple or Imogen D’Arcy at Else Solicitors via email or phone: kathryn.caple@elselaw.co.uk, imogen.darcy@elselaw.co.uk / 01283 526200.

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