As the Summer (yes, apparently it’s been Summer!) draws to a close, lots of parents will be getting ready to send their children back to school.  They will be rushing around, making sure their little ones have everything they need for their first day back, and planning playdates and endless after school activities.  But how many of these parents will have given thought to something far more important than pencil cases, back packs, and trampolining lessons?  Whilst parents will generally move heaven and earth to protect their children, many fail to plan for their future if the worst-case scenario should happen – the loss of both parents.  It’s not something any of us want to think about, but it’s so important if you want to avoid making a potential heart-breaking situation even worse.

When I was very, very young, I would sometimes spend Saturday afternoons watching an old film on BBC2 – perhaps a musical, possibly in period costume, but always with garish colours and a plot which ended with the heroine being vindicated and found not guilty of the misdemeanour of which she was being accused.  I recall watching a young actress who was popular in the 1940s, who tended to burst into song at the slightest opportunity, and who was too nice to be true. Her name was Deanna Durbin, and she spoke very posh. Girls like her always seemed to be holding a hockey stick when they got off the train at the end of term. Another well-spoken girl would pipe up “It’s a lovely day. Why don’t we go for a swim in Daddy’s lake?” To which, the first terribly nice girl might reply “Oh, I can’t come with you, I’m afraid. I’m meeting my Guardian for tea.”

Aha, you’re thinking. This is a piece about guardians, and it’s taken him this long to finally mention them. Well, that’s because this is the old-fashioned idea of what a guardian might be like – in the films of the forties, they were usually formal, stiff, with little or no sense of humour, and responsible for the finances of the young person as well as for their well-being. The reality today is that they don’t have to be a forbidding older man with no sense of humour; they simply have to be someone whom the young person’s parent or parents are confident would be the most suitable; and, of course, if the parent or parents are still alive when their youngest child reaches the age of 18, the appointed guardian would be extremely unlikely to need to act.

Back here in the real world, if you have young children you should definitely give thought to who would care for them after your death. If there is no parent alive who has parental responsibility for a child, families may not agree on the best solution, and it could be left to the Court to appoint a guardian – and this may very well not be the person who the parents would have chosen.

While appointing a guardian is usually contained in a Will, it should still be valid as long as it is in writing, dated and signed by the person making the appointment, and as with a Will it should be signed by two witnesses who are present.

So, why would it be sensible to deal with this extremely important matter with a specialist solicitor?  A while ago we were asked to prepare Wills for a couple with three young children, who understood the importance of appointing guardians. They had discussed the subject at length with each other before our meeting and explained what they had decided. The guardian was to be the wife’s sister, who was a single mother with a young daughter. Our clients owned a spacious home, which could accommodate the guardian and all four children, and the couple had made arrangements to ensure that the overheads of running the home, as well as maintenance for the children, would be covered. So far, so good. But we pointed out that while their three children appeared to have been provided for, the sister-in-law guardian was not in such a fortunate financial position. A pair of designer trainers can have a jaw-dropping price tag nowadays, and school trips can certainly be rather more adventurous than the old geography field trip I remember from my schooldays.  So, while the couple’s three children would be in a financial position for these things to be afforded, their cousin might well resent them for their apparent affluence, and that could cause real problems at an already difficult time. Needless to say, the couple were relieved when we suggested a solution, especially since it was simple to put in place. We explained that, depending on the ages of the three children, when (and if) a guardian was needed, the Will could make provision for a periodic sum – monthly, perhaps, or quarterly – to be given to the guardian for her own benefit, and not to provide exclusively for the now orphaned children. That money could be used by her at her own discretion to pay for treats for her own daughter as well, or even for herself if she chose. In that way, the potential envy among the children would hopefully never arise.

Guardians will be responsible for looking after your children until they reach the age of 18, so in choosing the right people, as well as the financial implications, there are other things you need to consider:

– Age – will they be able to cope with very young children or, dare I say it, stroppy teenagers?

– Location – will your children have to move school and be separated from their friends, or would the guardian be prepared to relocate if necessary?

– Religious and Moral issues – do they share beliefs that are compatible with the upbringing that you would like your children to have?

To learn more about guardians, get in touch with us.  We’ll be happy to answer any questions you might have, and we can also put in place the right Will for your particular circumstances.

Michael Anvoner – Principal Solicitor

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