A Will isn’t purely a document to deal with the distribution of property after death. It’s also an opportunity to provide for relatives and dependents who remain behind. If you have children under the age of 18 then a guardianship clause in your Will could be essential.
What is a guardianship clause?
If you have children under the age of 18, a guardianship clause in your Will enables you to name someone who you want to take care of them if something happens to you. Anyone with parental responsibility can appoint a guardian for their child – a mother always has parental responsibility and a father will also have this if the couple were married before the child was born. Otherwise, a father can acquire parental responsibility in a number of ways, including marrying the child’s mother, adopting the child or being registered as the child’s father on a register of births.
How does a guardianship clause work?
If there is a surviving parent with parental responsibility then the guardianship clause won’t come into effect when you die. However, if something happens to both parents, or you are the last surviving parent, then the guardianship clause will indicate who you want to take care of your minor child or children.
What happens where there isn’t a guardianship clause?
If there are no surviving parents and no guardianship clause then it will be up to the courts to appoint a guardian for your child – and the court may not make the same choice that you would.
The process of using a guardianship clause
Guardianship clauses are a simple paragraph inserted into a Will providing the name and address details of the chosen guardian and naming them as the person to take over parental responsibility should something happen to you. These clauses can also be made conditional, for example, the guardian may only be appointed if they are under a certain age or own their own home.
Guardianship clause considerations
- Changing your mind. If you decide you no longer want to have a guardianship clause in your Will then you can simply draw up a new Will. Alternatively, you can create a codicil that revokes the part of the Will containing the guardianship clause.
- Appointing different guardians. If two parents who are no longer together, for example, appoint different guardians then when the last surviving parent is dead both the guardianship clauses in the Will take effect. Under those circumstances, the two guardians would have to agree among themselves who takes on the responsibilities. To avoid this situation, parents should try to agree on a potential guardian in advance, even where a split or divorce has taken place.
- Getting remarried. When a parent gets remarried, the entire Will is revoked and so a new Will, with a new guardianship clause, will need to be drafted.
- Funding the guardian. It’s often important to ensure that the guardian you appoint has the financial resources to properly look after your child if necessary. You can do this in a number of ways, for example by leaving a gift to the guardian or leaving cash or assets in your Will to be held on trust for your child.
Guardianship clauses can make intentions clear and save a lot of trauma at an already difficult time. For further advice please call 01253 629300.