Laura And Her Daughter Hannah – Case Study – No Guardianship Provisions
Sarah and Laura are sisters and single mothers with a daughter each of similar age. Sarah’s daughter Issy is 7 and Laura’s daughter Hannah is 8, and they are best friends.
Sarah and Laura have discussed what would happen when they die and each would want the other to be their daughter’s Guardian if the worst came to the worst. They are very close, have the same outlook on life and live near each other, so the disruption to their daughter’s routine would be minimal. They are also estranged from their mother who lives 100 miles away and they haven’t seen her since before their daughters were born.
Laura is killed in a car accident and, because she didn’t get around to making a Will, she hasn’t left instructions for Guardianship for Hannah. It is now up to the Courts to decide who will look after Hannah. The process of deciding who is going to take care of Hannah is a lengthy one and, during this time, the local authority take Hannah into care.
Sarah applies to the Court for Guardianship of Hannah, but so does her estranged grandmother. After looking at all of the circumstances, the Court decides to give Guardianship to Hannah’s grandmother so, in spite of what Laura wanted, Hannah is taken away from her home, family and familiar and loved surroundings to live with the grandmother she has never previously met.
Please don’t let this kind of thing happen to you. This scenario, and the pain that comes with it, can be avoided by putting in careful estate planning measures such as the ones recommended by our expert Estate Planning Advisers, so contact LPA Guardian to see how we can help you.
THE LEGAL BIT – BECOMING A PARENT AND THE IMPORTANCE OF GUARDANSHIP
Whether you are a single person, married, in a civil or same sex partnership or co-habiting with someone, when you have children, you need to make a Will.
The stark reality is that, if your children have no living parents and you have not appointed a Guardian or Guardians in your Will, an application must be made to the Courts for a Guardian to be appointed to look after any children who are under the age of 18. There is no guarantee who the Court will choose and you lose any control over the matter.
We know that, as a parent, it is especially hard to imagine someone else bringing up your children – many parents find the idea upsetting and often too hard to think about.
However, knowing the alternative should make it easy to see why, for any parent, making a Will is the single most important thing that you can do to make sure that your child or children will be cared for by the people you would choose if the worst should happen to you.
You can avoid any uncertainty by designating a person or people as Guardians who will look after your children if you die whilst they are still not adults. Appointing Guardians in your Will means that you can rest assured that the people that you feel are best to fulfil this role for you will be the ones that are there for your children.
When choosing who to appoint as your Guardians, you need to consider what their responsibilities will be. Whoever you choose to be the Guardian will make important decisions about your children’s life such as:
- What sort of school they attend
- What medical treatment they receive
- What holidays they go on
- What religious beliefs (if any) they are taught
- How they are supervised before they reach adulthood
Deciding on who will be a Guardian is understandably a difficult decision to make and you may want to consider the following questions when you are making a decision:
- Who do you know who is most able to take on the responsibility of caring for your children – whether it be emotionally, financially and physically.
- Who do you know whose parenting styles, values and beliefs most closely match your own.
- Would the person have enough time and energy to devote to your children.
- Is there someone the children feel comfortable with already.
- Does that person have children already, and would your children fit into their family dynamic.
- Would your children be uprooted from their home, schools and other family if you appointed that person.
The fundamental question is:
“Am I confident that this person will be able to look after and take care of my child?”
If not, keep thinking until you have found the right person.
You will then need to think about how your Guardian will pay for looking after your children.
Your Guardian has no legal obligation to support your children from their own resources, so you will need to think about how to provide for your children’s upbringing. You can do this in various ways through the use of trusts, gifts or a combination of these.
As well as ensuring that you put Guardian provisions in place, it is essential to make a Will because these and wider considerations apply to all situations:
- Unmarried parents – there is no automatic right for your surviving partner to receive assets, so it may be difficult for them to take care of the finances for the children.
- Married parents – like many people, you may have genuine concerns that, after you have died, your surviving spouse may re-marry and end up passing the assets onto their new family, thereby disinheriting your children.
- Separated parents – if you are separated, it is likely that your wishes have changed. Separation does not make any difference to an existing Will, so you may need to make changes.
- Divorced parents – divorce itself will not revoke any existing Will you may have in place, but it will revoke any provisions in it that are in favour of your ex-spouse. Again, you should check your Will to see if you need to make changes.
- Single parents – if your child’s other parent doesn’t have parental responsibility and you don’t put Guardian arrangements in place, your child may be taken into local authority care.
- Parents in second marriages – with remarriage on the rise, you may have a new family comprised of your own children and those of your new spouse. These “blended” families can be complicated and you will need to think about how to maintain a fair balance between family members.
- Parents who lose their mental and physical capacity – there may be situations where you aren’t dead, but you are unable to look after your children perhaps because you have been in an accident. You should put Lasting Powers of Attorney in place to ensure that someone you trust can ensure that your children have access to the finances they need.
At LPA Guardian, we can help you plan for any eventuality and put the correct kind of estate planning in place.