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Appointing a Legal Guardian for your Baby

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
newborn baby
towards making a will is to instruct a solicitor and inform them of your requirements, or you could opt to create your own will using an at-home kit. The latter option is often appealing as it can be cheaper, but it does not offer the type of personalised legal guidance that you benefit from when using a solicitor. It is then completely your decision about how much detail to include in the will regarding your preferred guardians and the way in which you want your children to be raised. It is perfectly acceptable to have a basic will costing less than £500 simply stating the names of your chosen guardians and executors, yet the more detail you can include the greater control you have over matters.

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 complicated

mother and baby
family units are now more common than traditional ones and it is perfectly possible to have your wishes tailored to even the most complex of circumstances. Your solicitor will be able to advise you on the best approach to suit you and it is advisable to be as specific as possible about your intentions for each child. Being clear about terminology when you refer to 'children', either by choosing to name individuals or stating that you mean biological, adopted, step-children or any other permutations will also help to paint a clear picture of your intentions.

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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