What happens to your child if you die whilst they are still under 18?
If both parents die before a child reaches 18, a guardian will need to be appointed.
Most parents prefer to decide who will look after their children if they die. Appointing a guardian in their Will offers control and peace of mind.
The appointment takes effect on death and gives the guardian parental responsibility (‘PR’). PR is important because it allows the guardian to make important decisions about the child’s life and upbringing. A person who looks after a child but does not have PR only has a limited right to do what is reasonable in the circumstances to safeguard or promote the child’s welfare.
Appointing a guardian in a Will is however often not as straightforward as parents may assume depending on the circumstances. Parents should give their choice of guardian careful thought.
What happens if only one parent dies?
If one parent dies before the child is 18 and the surviving parent has PR then regardless of any guardianship appointment in the deceased parent’s Will, the surviving parent will be responsible for the child and has the right to make important decisions about the child’s life.
A mother automatically has PR when the child is born, a father who is married to the mother or is named on the birth certificate also has PR.
This could be an issue if for example, both parents have PR, but they are now separated and the child is raised by one parent alone. That parent dies and the absent parent is now responsible for the child. The deceased parent may not have been comfortable with this and may prefer for example, their parents or siblings care for the child.
The importance of parents coordinating appointments
If for example, both parents make Wills appointing guardians for their child and one parent dies before the child is 18, the appointment under their Will does not take effect on their death, it takes effect only if the other parent also dies before the child is 18. The appointment in the Will of the second parent to die also takes effect on their death.
Parents should therefore discuss this and appoint the same guardians. Otherwise, there could be two separately appointed guardians who would have to work together to make important decisions about the child’s life. If they cannot agree, the court will decide.
What if the father does not have PR?
If the father of the child does not have PR then only the mother can appoint a guardian. The mother does not need to consult with the father.
If the mother dies before the child is 18, the mother’s appointment of a guardian will take effect immediately and only the guardian will be able to make decisions about the child (even if the child was living with his or her father). The guardian will have no legal obligation to consult with the father.
If however the father had acquired PR before the mother died, the mothers appointment of a guardian would not take effect.
What if both parents die without having appointed a guardian?
Only the court can appoint a guardian.
If the parents agree informally with family or friends who will care for the child if they die, nobody will have PR.
Can I be specific about how my child is cared for?
Parents may wish to include further provisions to ensure that their child is appropriately cared for.
It may not be possible to achieve exactly what the parents want, circumstances may change. It is advisable for parents to draft a letter of wishes for guardians to use as guidance only. The letter should be stored with their Wills.
It is possible to make an appointment subject to a condition. For example, appointing grandparents provided they are a certain age on the parents death and if not a substitute guardian is appointed.
What if the guardian cannot take on the responsibility?
Parents can appoint a substitute guardian if the first-choice guardian dies before the surviving parent, loses mental capacity or disclaims the appointment.
It is not possible to appoint a successor guardian if the guardian whose appointment has taken effect dies.
The guardian whose appointment has taken effect can however appoint their own successor and it is advisable that a guardian do this as soon as they take up their appointment.
It is sensible for parents to discuss successor guardians with their chosen guardians and make their wishes known in their letter of wishes. The requests in the letter would however not be binding on the guardian. The court will consider the parents’ wishes but ultimately the welfare of the child is the courts paramount consideration.
How does the appointment come to an end?
Once a guardian is appointed on the parents death, the appointment can only be brought to an end if the guardian disclaims the appointment or the court orders it.
The appointment of a guardian does however end when the child reaches 18.
How will the guardian manage financially?
A guardian does not have an obligation to support a child from their own money.
Following the death of both parents, the estate of the second to die is usually held in trust for the child.
Before the child becomes entitled to their inheritance, the trustees usually have powers to pay income and/or capital from the trust for the benefit of the child. The trustees will usually therefore have the power to use the trust to pay funds directly to the guardian for the child’s expenses.
Parents should consider this carefully when selecting guardians and trustees. The guardian and trustee should be able to work together for the benefit of the child.
It is sensible for parents to include in their letter of wishes how they want their trustees to exercise their powers to support the child.
There is a lot to think about when appointing a guardian, and seeking the advice of a solicitor specialising in this area of law can help guide you.
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