Guardianship

Protecting Children Under 18

Guardianship

If You Died Yesterday, Who Would Parent Your Young Children?

If a death event occurs of both parents, then you should consider who you believe would care and provide for your child as much as you would. The Local Authourity and courts may not choose the right people who you would expect to look after your children like you would

Guardianship

So… What is Parental Responsibility?

By definition Parental Responsibility implies: ‘All the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to [a] child and [their] property (Children's Act 1989, ss2, 3)

A birth mother of a child will always have parental responsibility according to UK law. The only time this will not be the case is in the situation of a legal adoption of the child.(in favour of another adult)

Fathers: by law will inherit parental responsibility if they are married to the mother, named as the father on the Birth Certificate.

Also, parental responsibility can be obtained via a court order or by mutual consent of both parents via a Parental responsibility Agreement.

What Happens If Both Parents Pass Away and No Guardian is Appointed?

In the unlikely event that both parents pre-decease a child before their 18th birthday, and no guardians have been appointed, only the court will have the power to appoint a guardian.

Therefore making sure you have a parental guardianship clause in your Will, appointing those who you trust to raise your children just like you, should be appointed without further hesitation. Take the Will Quiz now to fin out what's the best will for your situation.

Guardianship clauses can appear in either a Standard Will or a fully flexible will. Don't delay, take the first step today… Take the quiz

Guardianship

A Note About Child Arrangement Orders and Guardianship

For single parents or if a child's parent's are no longer together, it is important to ensure that the child has legal guardianship in the event of a parent's death. A Child Arrangement Order (CAO) is a court order that establishes which parent or guardian the child will live with and who will have parental responsibility for them.

A Child Arrangement Order is a legal document that establishes who has parental responsibility for the child and what rights each parent or guardian has. It allows parents to make arrangements that suit their individual circumstances and can also be used as an alternative to court proceedings if there is disagreement between the parents about custody. The CAO will provide clarity on the terms and conditions of both parents’ roles, responsibilities, rights and duties in respect of the child.

When a parent dies, their will is the legal instrument that gives instructions on how they would like their assets to be distributed upon their death. Without an up-to-date CAO in place, it can be difficult for a will to determine who should be appointed as the legal guardian of a child. This means that the court could be left to decide who will have custody, and the parent’s wishes may not be respected in this decision.

In conclusion, it is important for all parents to ensure that their children have legal guardians. At ONCE Wills and Trusts we can assist you with this.

Frequently Asked Questions

What is legal guardianship and why is it important?
Legal guardianship is a status conferred by the court to an individual, giving them the legal authority to care for someone who cannot take care of themselves – typically a minor child or an adult with disabilities. This includes making critical decisions on their behalf about healthcare, education, property, and daily life. The importance of legal guardianship lies in its focus on the welfare of the person in need. It ensures that there's someone legally responsible for making decisions in their best interest, protecting their rights, and providing care and support.

How does a Child Arrangement Order work in regards to guardianship?
A Child Arrangement Order (CAO) is a specific type of court order that sets out the living arrangements for a child. Essentially, it determines which parent or guardian the child will live with and who has parental responsibility. Parental responsibility refers to all the legal rights, duties, powers, responsibilities, and authority a parent has for a child and the child's property. A CAO can provide clarity and stability, helping to avoid disputes or misunderstandings about what each parent's or guardian's role should be. It can also serve as a tool for resolving disagreements about custody without resorting to more complex legal proceedings.

What are the main responsibilities of a legal guardian?
A legal guardian assumes a wide range of responsibilities aimed at ensuring the wellbeing of the child under their care. They are tasked with making key decisions that impact the child's health, education, and overall welfare. This could include decisions relating to medical treatments, schooling options, and managing the child's financial affairs. The guardian also provides for the child's daily needs, including shelter, food, clothing, and emotional support.

Can a will dictate who becomes a child's legal guardian after a parent's death?
Yes, a will can indeed specify who a parent wishes to become their child's legal guardian in the event of their death. This is a common way for parents to ensure their children are cared for by someone they trust. However, it's essential to note that the court retains the final say and will assess whether the nominated person is suitable and if the appointment is in the best interests of the child.

What happens if there is no legal guardian appointed for a child?
If no legal guardian has been appointed for a child, and the parents are unable to care for them due to death or incapacity, the court intervenes to appoint one. The process involves an evaluation of potential candidates, usually close relatives, to determine who would best serve the child's interests. The court considers various factors, including the child's emotional ties with the potential guardian, the moral fitness and conduct of the potential guardian, and the child's preference, if they are old enough to express it.

How can I establish a legal guardianship for my child?
Establishing legal guardianship typically involves a court process. You would start by filing a petition for guardianship with the court. This document should detail why the guardianship is necessary and how it would serve the child's best interests. After filing, a court date is set where a judge considers the case. If the judge agrees that the guardianship is in the child's best interest, they will issue a court order granting guardianship.

What are the potential consequences of not having a Child Arrangement Order in place?
Without a Child Arrangement Order in place, there can be ambiguity and potential disputes over who has parental responsibility for the child, leading to instability and stress for all involved. In the event of a parent's death, it can be particularly challenging to determine who should be appointed as the legal guardian. This could result in protracted legal battles or, ultimately, the court deciding on the child's living arrangements, which may not align with the deceased parent's wishes. Therefore, having a Child Arrangement Order can provide clarity, prevent disputes, and ensure continuity of care for the child.

What Type of Will Do You Need To Protect Your Family?