Appointing a Legal Guardian for your Baby
Soon-to-be parents often spend time during pregnancy making plans for the future, discussing potential names, colour schemes for the nursery and education options.
Yet a topic that rarely comes up in these conversations is guardianship, and who you would like to care for your child if you were no longer around to do so. It might not be the happiest subject to consider, but creating a will that clearly sets out your intentions is a reality that all parents should consider.
What if I don’t have a will?Those who die without a will are said to be ‘intestate’ meaning there are no legal provisions for their children and no agreed plans for the division of assets. Children under the age of 18 automatically become the responsibility of social services until all options have been assessed and a suitable guardian is appointed, which can take weeks, months or even longer. The entire estate is frozen until probate is granted by the courts, tying up any money that you have left behind for an indefinite period.
Close family members are typically the first people to be considered by social services as suitable guardians and the surviving mother or father takes priority. Yet many people are surprised to learn that godparents have absolutely no legal status without a will in place.
Where do I start?The first step
You can have as many or as few guardians as you like; best practise is to appoint a couple as your first choice then set out a second and third choice. The most important thing is to select those who you believe will adopt a similar method of parenting to your own. It is tempting to wait until your child is older and you can see who they get on well with, but you can always change an existing will to reflect this, rather than running the risk of being without a will for any length of time.
My family is complicatedModern
Complex circumstances regarding your chosen guardians can also be catered for in a will. I recently handled a case whereby the parent wanted to appoint her sister who lived in Australia as the preferred guardian for her children. In order to ensure the courts would approve this expression of wish, I advised attaching terms to the will that specified the sister would agree to return to the UK in order to fulfil her role as guardian. Without this, it is unlikely that the original wish could have been upheld.
Discussing these issues and the options available is a good way to start clarifying your wishes before putting pen to paper. When your baby is born, your time will be spent dealing with other priorities, so getting your legal affairs in order during pregnancy is a good opportunity to have one less burden on your mind.
By Tasnim Khalid, senior associate, JMW Solicitors
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