What if… I have young children

Published: 01/10/2014

In our second article of our What if… series we look at people with young children and what would happen and who would look after them should something happen to you.

Understandably, this isn’t something any parent particularly wants to think about. However if you have young children, making a Will is even more imperative. In your Will, you have the opportunity to appoint Guardians. This way, should the worst happen, your children are being looked after and cared for by the person or people you wanted.

There are a lot of misconceptions about who would look after children should the parent(s) pass away. Many think godparents have an automatic right, while others presume the child’s grandparent would be guaranteed Guardians. This is not the case.

But obviously my partner will be given automatic guardianship…

A mother automatically has parental responsibility (PR) of her child(ren). This means should the father of her children die, she will have sole PR of their child(ren) whatever her current relationship to the father. The position, however, varies for fathers.

In England and Wales, if the parents were married or had adopted the child(ren) then they have joint PR. This means if one of them dies, the surviving parent will automatically have sole PR of their child(ren).

If the parents have divorced and one then dies, the surviving parent will still automatically have sole PR for the child(ren), even if the children did not previously live with the surviving parent.

If the parents were not married, and the father dies, the mother will automatically have sole parental responsibility. If the mother dies, the father will only acquire PR if he has been named on the birth certificate of the child after 01/12/2003 or, by a PR agreement entered into with the mother or by a PR order made by the Court.

Who to choose

Regardless of what you may have agreed with family or friends, if you do not make a Will and name a Guardian(s), the Courts will decide who will look after your children. This could result in your children being raised by someone you may not have wanted or your children living somewhere you would not have liked.

Choosing a Guardian is one of the hardest choices a parent will have to make, so it is not a decision to rush.

Guardians will be responsible for your children until they are 18 and will provide a home and make all decisions regarding their education, health, religion and general upbringing. They may also be responsible for any assets or money left to your children, if they are named Trustees too.

We advise you considering the following questions to help you reach a decision:

  1. Can they provide a stable and comfortable home?
  2. How is their relationship with your children?
  3. Where do they live in relation to your children’s school, friends and other relatives?
  4. Are they trustworthy and responsible?
  5. How old are they and do they have any health issues?
  6. Do they have or are planning on having children of their own?
  7. Do you want to discuss this decision with your children and understand their feelings towards the person?

You can name between one and four Guardians in your Will but many people prefer to appoint two (usually a couple). You can also name an alternative set of Guardians in case your primary Guardians cannot fulfil the role.

Content correct at time of publication

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