Choosing Legal Guardians for Your Children

There are things to consider when choosing a suitable legal guardian for your children:

• Location – where do they live? Would it require your child/children being moved schools, away from friends and familiar surroundings?
• Values – are there any religious or cultural values to consider? Would theirs reflect your teachings and values?
• Relationship – does your child/children already know and get on with this person?
• Their family – do they already have children themselves? Could they be responsible for your child/children too? Do they have a career which would affect this due to time?

Won’t the care of my children just default to my next-of-kin?

It is not enough to have a verbal agreement with a friend or family member; even your godparents are not legally-binding. If your child(ren) have no living parent and you have not appointed legal guardians, anyone can apply for custody to the court.

I live with my partner, but we are not married, will they become a legal guardian if I die?

This is a really important question and one we get asked often. Mothers always have ‘parental responsibility’. Unless your partner has a parental responsibility of your children (married to the Mother at time of the birth, or listed on the child’s birth certificate), they will not automatically keep caring for them.

If you are civil partners at the time of donor insemination or fertility treatment, you will both have parental responsibility.

You can find lots of useful information around ‘parental responsibility’ on the GOV.UK site, which is worth reading, too.

Can I choose anyone as a legal guardian for my children?

You can choose (or nominate) anyone to be a legal guardian, but it is ‘usually’ a close friend or family member. 

It’s advisable to choose just one guardian, unless they are in a couple and in which case choose two guardians.

You should also consider choosing the same guardian for all your children, so they don’t accidentally get split up from one another. This is something to consider if you child lives elsewhere or with a different family member.

The nominated guardian will only be called upon if both parents have passed away before the child is 18 years old. 

What if my partner and I disagree on the choice of legal guardian?

In an ideal world both parties would agree, but in a realistic world, people often don’t. Technically you both can nominate different people. It is recommended that both parents nominate the same guardian in their wills, even if they are separated.

That said, in the worst case scenario (where no one agrees), it is better to have two different nominations rather than none at all. 

Amendments can be made at a later stage, should you change your mind.

Think about financial planning…

As well as instructing who you would like to raise your children as a legal guardian, you should also consider making plans to provide financially for their future, too.

Whether you look to allocate money for their future education, or as a house deposit, or simply set out an amount you would like them to have each year; there are ways to ensure this happens.

For example, a trust is something you may consider setting up for your children. This enables you to decide when your children receive the money and what for. This type of arrangement helps give you some control and influence over what you will provide. MT Legal services can help you with this planning.

There are two ways to set up a trust: you can either establish it while you are still alive or leave instructions for it to be established when you pass away.

It’s also important to think about foster or step-children; or any other dependents who rely on you for support. 

Your step-children may be a big part of your life, or even be your only children, but the law states that only spouses or blood relatives can automatically inherit if there is no Will. If you have a Will, you will need to include them in it.

Making a Will is often the last thing on people’s minds when they are busy being a parent. That said, if you die without a Will it could lead to worry and uncertainty for your family and dependents.

As a member of the Institute of Professional Will Writers, you can be sure that you’re in good hands when you employ MT Legal Services.

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