In almost all of our blog posts we explain why everybody should have a Last Will and Testament, but for parents it is extremely important and for single parents, even more so. A Will allows parents (or a sole parent) to state a preference for who they would like to raise their children if they die (including if for example both parents are involved in a common accident). It usually also allows the parent to explain the reasons why this person is their preferred choice.
If both parents are involved in a common accident, or a single parent has sole custody of a child and then dies, one of three things will happen if there is no Guardian named in a Will;
- Somebody will come forward and offer to look after the child or children. This person will then have to apply to the courts for formal custody and they will be legally granted custody.
- More than one person will come forward and there will be a dispute over who is the most suitable and the family courts will decide based on the best interests of the child.
- Nobody will come forward in which case the child or children will become “children in need of protection” and will be put in the care of the child services agency
If a Guardian is named in a Will most jurisdictions will grant custody to this person. If other friends or family members dispute this selection the process varies by jurisdiction but usually preference is given to the person named in the Will. In some jurisdictions the “Guardian by Will” has to be shown to be unfit before the judge will grant the guardianship to another person.
So what factors should go into making this decision? here are a few, but they are subjective and the decision is ultimately a very personal one;
Friend or family member? – It would seem that by default, all things being equal, a family member would be preferred over a friend, but the other factors below may make a friend a more suitable choice.
Geographic location? – you would have to decide if it appropriate to move the children across the country or even around the World. A decision that may seem suitable for a young child may not be the right decision for a teenager.
Age? – Both the age of the Guardians and also the age of the children. It probably doesn’t make sense to name grandparents as the Guardian of a two-year old when that responsibility will last another fifteen or sixteen years, but perhaps they may be suitable Guardians of a sixteen year old.
Children of their own? – Is it more appropriate to name a Guardian who already has one or two children of their own, or is this too much of an additional burden. Many families have reached a balance and introducing one or two additional children may add to much strain to the family. Even practicalities of sleeping arrangements may be logistically very difficult. On the other hand, if a happy couple have decided not to have children, it may severely cramp their lifestyle to introduce a toddler into their care.
Financial means? – There is a good chance that a trust will be set up for the children that can be drawn upon by the Guardians, and this would help pay for education and health care. But there still may be a financial burden imposed on the Guardians for the care of the children. The financial means of the Guardians may be an influencing factor.
Values? – Of course, the religious, spiritual, and general lifestyle values are critical in selecting a Guardian. This is also a factor that changes in weight depending on the age of the child.
Emotional ties? – One of the most important factors is that you want the child to join a loving home and hopefully a stable family environment. The guardians should have an emotional investment in the well-being of the children. There are many stories of family members being chosen ahead of friends, but the family members not even particularly liking the children. You then end up with the type of family environment described by Lemony Snickett and the Brothers Grimm.
Keeping the children together? – If you have more than one child, you would have the option of naming a different Guardian for each child. It is an extremely difficult decision but one that needs careful consideration.
As we noted in a previous post, if you have included the name of a preferred guardian in your Will, then this can be submitted to the family courts and will be a crucial piece of information for the judge to ponder when the guardianship is granted. Of course, remember that you should also discuss guardianship with the individual or family that you have named before finalizing your Will. It should not come as a shock to them and you must know that they are willing to take on the role. Just by including your preference in your Will, they are not legally bound to accept the responsibility.
It is also important to note that these factors do change in importance as the children grow and as the circumstances of friends and family change. You may have named your sister as the Guardian, who then has triplets, or who starts to have family difficulties of her own. At any point, your preferred Guardian may no longer be the most suitable person and this is one of the key reasons for a regular review and update of your Will.
People are sometimes reluctant to review their Will on a regular basis, but if you have a Guardian named in the Will it is worth spending a few minutes each year making sure this person is still suitable. Of course, at LegalWills this can be done quickly and easily by just logging into your account, making a change and printing a new document. But even if you’ve chosen to create a Will with a lawyer, you should review your choice of Guardian regularly.