Residential property
07 Jun 2019 News

Who will look after my children if I die?

All parents should think about is the arrangements for their child (or children) if something was to happen to them.  This is often particularly important in a situation where parents live separately.  In that scenario there can be a concern that the child might go to live with the other parent when the deceased parent doesn’t think that would be good for them, and/or there can be a concern that the child will lose touch with one side of the family.    

This is a situation where having a Will is absolutely vital.  A Will can name a guardian (or guardians), who will effectively step in to the parent’s legal shoes if they die (but only if they die).  It also tells everyone what the parent, as a person who knows a child best, thinks was best for them, which carries a lot of sway.  So, for example, a single mother might choose to name her sister as guardian and explicitly state that, in her view, the best thing for the child is to live with her sister.   If the mother dies then her legal responsibilities and legal rights as a parent pass to her sister, who assuming she agrees to be a guardian, then automatically has a legal basis to make decisions about where the child lives, their medical treatment etc, in exactly the same way as a parent.  In this scenario the other parent will also have legal rights and legal responsibilities towards the child, and that will not change.  Two people would then have the right to input in to the child’s life.  If there was a dispute about where the child should live, or anything else, it would be treated in the same way as if there was a dispute between two parents.  Either could apply to the Court in the event of deadlock, and the Court would make a decision based on what is best for the child.

The second reason to name a guardian, no matter if the children live mainly with you or their other parent, is to maximise the prospect that they will continue to see both sides of their family.  The fact the guardian has a legal standing, and so a stronger voice, means they can make sure that the child continues to visit, attend family events or generally spend time with them.  It also makes it easier for them to raise a concern or step in if they see anything happen with the child that causes them concern.    

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