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If you have young children

Woman Wrapped Up NewIf you have young children and are the only adult with Parental Responsibility you need to appoint a guardian in case you die.

If there is another adult with Parental Responsibility he/she will continue to have Parental Responsibility after your death, and would be the obvious person to be the children's guardian. But they may die before you, or this might not be what you want to happen.

For instance, if your partner plays a bigger role in your children's lives than their other parent, you might feel that it was better for your children to stay living with your partner.

Cally's story

Cally was thirty nine when she was diagnosed with leukaemia and this threw her into a panic about what would happen to her two children if she died. She was divorced from their dad, Mickey, and he had moved to Cornwall to work. Cally stayed in Manchester and started to live with Hanif who had been a very caring stepfather to the children for seven years. Though Mickey kept in touch and the children had holidays with him, Hanif was much more like their real dad and she thought that they would be better off staying with him.

She had long and rather tearful discussions with Mickey about what to do and he agreed with her. Cally wrote her will and appointed Hanif the children's guardian.To make it even more certain, she followed her solicitor's advice, and she and Hanif applied to the court for a residence order as this brings Parental Responsibility with it. Mickey wrote to the court to say that he agreed to this and in this way Hanif, Mickey and Cally all shared Parental Responsibility.

After Cally's death, the court confirmed Hanif's appointment as guardian, and the children continued to visit Mickey as before.

Who has Parental Responsibility?

The mother always has parental responsibility for her children.
Her unmarried partner will not have this unless:-
He is the child's biological father and he:
• marries the mother, or
• is named as the father on the birth certificate, and the birth was registered after 1.12.2003, or
• has made a Parental Responsibility Agreement with the mum which is then registered at the court, or
• applied to the court for a Parental Responsibility Order, because the mother refused to make an agreement.

If your partner is not the child's father he/she can get Parental Responsibility by applying to the court for a residence order. See LivingTogether’s Children section for more details.

If you appoint a guardian in your will it may stop any disputes between families. Having said that, if someone felt the child was not being properly cared for, it could be disputed. Appointing a guardian as part of your will also enables you to set out what financial help should be given to the guardian.

If you decide to make a will leaving money or property for children who are under eighteen you will have to set up a trust for them.

You need to choose sensible people to look after the children's money for them. The trustees do not have to be the same as the guardians that you chose. You will leave a sum of money to your trustees "on trust" for your children until they reach 18 or 21: you can decide what age you think is suitable.

You can either fix the amount each child gets or make it "discretionary", which means it will be up to the trustees to decide what each child should get and when they should get it.

We would strongly recommend that you don't make a home-made will if you need to do this

What Keisha did

Keisha had three children from her first marriage. Their father, Ben, died when the youngest was only 15 months. Three years later, Keisha started to live with Stu.

Keisha thought that if she died Stu would be the best person for the children to live with because he had been like a father to all of them. But she had inherited a lot of money from the children's dad and wanted to make sure that it went to the children.

She named Stu as the children's guardian in her will. She appointed him as one of the trustees and Ben's sister, Jenny, as the other. She thought that this would make sure that Ben's family did not lose touch with the children. She knew that Stu and Jenny got on well together and that they would both have the children's best interests at heart. At the same time she made sure that Stu had enough money to look after the children if she died before they were grown up; after all, he was being asked to take on a big responsibility.

February 2010

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If you have children under 18, have you appointed a guardian?

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