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Both natural parents of a child have Parental Responsibilities (PRs) over that child, which means in turn they have the power to appoint a guardian for that child. As unpleasant as it may seem, it is wise to consider appointing a guardian who will have responsibility over that child in the event that both parents should die. Who would step in and care for your children? Would several relatives become conflicted? By appointing a guardian for your children in your Will, you can safeguard your family from these types of issues.

In other cases, a “special” guardianship order can be sought where both parents are living but the child cannot live with them. Guardianship lasts until a child turns 18 years old.

Appointment of guardians

Either parent with PRs can appoint a guardian each, and a proposed guardian must be over 18 years of age. If either of the parents die, the guardians will act with joint decision-making powers. If no guardian is appointed and both parents die, a court can appoint a legal guardian. In any event, all decisions are made with the best interests of the child at their core.

Through a proper estate plan, you can clearly outline how you wish your assets to be distributed to your children. Perhaps you do not want your children to receive their inheritance as a lump sum on their 18th birthday. You may opt for a distribution plan tailored to your specific desires. Without a Will, these important decisions are left up to the courts, and your estate may not be distributed according to your wishes.

The guardianship process is begun where the proposed guardian files a petition with a court. The court may order a home visit and criminal background check of the nominee. If instead of being nominated by parents a person files for guardianship on the basis they can prove the parents are unfit to raise that child, this will only be granted if found to be true and in the best interests of the child.

Powers of the guardian

When granted authority, a legal guardian will be able to make decisions regarding the child’s education, health and upbringing. If the child is due inheritance, this will also be held in care of the guardian until the child comes of age. The guardian will manage your children's inheritance until they are capable of managing their finances on their own at age eighteen or older.

Special guardianship 

Where both parents are still living but a child cannot live with them, a court can appoint a special guardian with PRs over that child until they come of age. As with other forms of guardianship, the central issue is whether the issue is in the best interests of the child. An existing guardian whose PRs have not vested can apply to be made a special guardian.

Before a special guardianship is approved, a local authority report will be drawn up which explains the facts of the case and incorporates the child's feelings on the matter.

Contact our Wills and Probate Solicitors London

Our solicitors have nearly 40 years’ experience in handling Wills, Probate and Estate Planning matters, including in relation to guardianship of children. We offer a tailored approach that explores and addresses the personal circumstances of our clients. Contact our Wills and Probate Lawyers today on 020 7387 2032 or complete our online enquiry form.

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