Sounds familiar? It can be daunting to think about, but appointing guardians for your children is important, and easily done in your will. Usually this will be a relatively straightforward discussion between parents, with both agreeing on who they would like to take care of their children if the worst were to happen. But sometimes the situation is more complex and it helps to be armed with more information before you decide.
Guardians have the same parental rights and responsibilities (PRRs) as parents in respect of a child. They are responsible for safeguarding and promoting the child’s health, development and welfare, providing direction and guidance, and acting as the child’s legal representative. They are also responsible, if the child is not living with them, for maintaining personal relations and regular direct contact with the child.
If there are two or more persons with PRRs, generally each can exercise them independently. Persons with PRRs should consult with each other and agree on major decisions – where and with whom the child should live, which school the child should go to, and so on. If agreements cannot be reached, then a court must be asked to make a decision.
Appointing guardians is a key priority for parents when thinking about their wills. Each parent, however, has a separate will and the appointment of a guardian may be effective immediately on that parent’s death or only if both parents have died. In Scotland, a guardian can accept their appointment without any court intervention, and acquires full PRRs regardless of who else has parental rights and responsibilities. The effect of this is that there may well be two (or more) persons with PRRs – the surviving parent and the newly appointed guardian.
The guardian may choose not to accept the role if there is a surviving parent. If the parents were separated, though, the guardian may wish to act and assist in bringing up the child in the way the deceased parent would have wanted, perhaps to ensure continued contact with the deceased parent’s family.
This can work harmoniously or it can be difficult, depending on how the surviving parent and guardian get along. Court actions to settle disputes are stressful and expensive.
A key issue with separated parents appointing guardians is that their wills are usually drawn up entirely separately, without consulting each other. If both parents have appointed different guardians in their wills, the order of appointment will matter. For example, one parent dies but the nominated guardian decides not to accept the role on the basis that the other parent is providing a good home for the child. The surviving parent dies two years later, with a different guardian appointed in their will. The second parent’s nominated guardian would be appointed – the first parent’s nomination is no longer in play. It is possible to raise a court action to challenge this, but, again, this would be costly and likely to be stressful.
There is also the interplay of who controls the purse strings. Your will can include provisions to hold assets and funds in trust for your young children’s benefit, the trustees would be responsible for managing the funds and making decisions regarding payments for the children’s benefit.
This would be effective regardless of whether the guardian in the same will actually acts. Who the trustees are, and how well they would communicate with the surviving parent or guardian, is very important. The person you would like to act as guardian could also be appointed as one of the trustees – and would act as trustee regardless of whether they end up acting as guardian. Or you may decide that other people are better equipped to manage the finances.
Parents always tell us that they keep meaning to do seek advice, so please don’t put it off. Everyone hopes that these scenarios will never actually arise, but none of us has a crystal ball and the only way to give yourself peace of mind that you have taken care of things is to get it in writing. Seek advice from your solicitor, talk through the options, and don’t leave things to chance – you’ll be glad to tick it off your list.
Catriona Torrance (private client team) and Linda Walker (family team) are both associates, with Balfour+Manson.