Starting or growing your family is an incredibly exciting time. Becoming a parent can also be all consuming, but there are a number of legal matters you should consider to protect your family.
Parental Rights and Responsibilities
Parents have several legal rights and responsibilities in relation to their child, such as the responsibility to safeguard and promote the child’s health, development and welfare; the right to maintain a relationship with the child and to act as the child’s legal representative.
There are several ways in which a family can begin and grow, including adoption, surrogacy and assisted conception. It is important to understand your rights and responsibilities and the circumstances in which these may not be granted to you automatically. Taking legal advice at an early stage is important.
Do you have a Will in place and, if so, does it need to be updated? Having a properly structured Will allows you to:
- Ensure you have the right Executors in place to deal with the legal process in the event of your death.
- Put in place appropriate Trust provisions to protect money for young or vulnerable beneficiaries. In Scotland, children are regarded as having legal capacity at the age of 16 and would be entitled to any inheritance at that age in the absence of Trust provisions. This is a very young age at which to inherit even modest sums.
- Appoint Guardians for your children, if something happens to you whilst they are still young. If you appoint a Guardian in your Will and he or she accepts the position after your death, he or she will acquire the same parental rights and responsibilities as a parent.
- Minimise any Inheritance Tax that may apply on your death, thus ensuring sufficient funds are available to care for your children and that they can continue to live in the family home if appropriate.
- Understand who has an automatic claim to a share of your estate through Legal Rights.
You should regularly review your Will to ensure that it continues to reflect your wishes and your personal circumstances.
Power of Attorney
A Power of Attorney allows you to choose who should make decisions regarding your finances and your health and welfare if you could not do so yourself for any reason, for example due to illness or an accident. In the absence of a Power of Attorney, it is important to remember that your spouse does not have the right to deal with your finances. This could leave children exposed if money could not be accessed and may mean your family has to ask a Court to appoint a Guardian. This is a time consuming and costly process and means you are not in control of who is appointed.
A parent’s right to make decisions on behalf of their child comes to an end when the child reaches 16. If your child has complex needs and you want to be able to continue to support their decision-making, you should seek advice ahead of their 16th birthday, on whether it will be possible for your child to grant a Power of Attorney in your favour, or whether it might be necessary to apply to Court to be appointed as your child’s financial and/or welfare guardian.
Insurance and Protection
Starting a family is a good time to undertake a financial review. This will allow you to consider whether you need life insurance, how you might save for your children’s future education costs and what income protection would be appropriate to ensure your finances are secure if you couldn’t work for any reason.
Grandchildren’s School Fees and Education Costs
When you become a grandparent, you may be thinking about your own longer-term Inheritance Tax planning and whether you can help your children with the costs of raising the next generation. Setting up a Trust can be a very tax efficient way to provide a fund to help with education costs, but specialist advice should be sought to make sure any Trust is structured appropriately.
Starting a family is the beginning of a new normal but don’t forget to add ‘legally preparing for the future’ to your to do list.
This article originally featured in The Scotsman on 16 May 2022.