Who will look after my children in the event of my death?

It is common for parents to worry about what will happen to their children in the unlikely event of death when their children are still minors (under the age of 18).

Parental Responsibility

For married/divorced parents, usually, the surviving parent will have parental responsibility for the child. For unmarried parents, if a child was born after 1^st December 2003, a father will automatically have parental responsibility if his name is registered on the birth certificate. Parental responsibility is not removed upon separation/divorce and will only be removed by the courts in very extreme circumstances.

If one parent dies, which leaves the surviving parent with parental responsibility, then the responsibility to look after the children will fall to the other parent with parental responsibility until the children are 18.

This can be worrying if the surviving parent has little involvement in the child’s life, or if your child is close to somebody else and you would rather that he or she stays with them.

What can you do?

Wills

One of the most important steps you can take is to make a Will if you have children, so that you can appoint testamentary guardians to take care of them after you have gone. Having a say over who will take care of your children can help you feel more at ease about their future.

A testamentary guardian is given parental responsibility (PR) in the event of the death of the person appointing them and has the same rights and responsibilities as a parent.

However, the appointment of testamentary guardians will not take effect unless there is no surviving parent with parental responsibility.

The appointment of guardians can be a difficult and emotional decision for some. In other words, they will be responsible for all major decisions about your children and their welfare, including living arrangements, education and medical treatment. It is therefore important that you give it careful thought and review your decision from time to time to make sure it is still right.

Letters of Wishes

A Letter of Wishes can be placed with your Will to help explain your choice of guardians as well as giving guidance on how you would like your children to be looked after.

A letter of wishes is not legally binding but can be a useful tool for guidance.

Parents v Guardians

If a situation arises where there is a surviving parent and an appointed testamentary guardian, consider:

• Can they act together to meet the needs of the children until 18?
• Can the arrangements for the children be agreed without any need for court intervention?

If there is a dispute between the testamentary guardian and the surviving parent as to where the children should live and with whom, at that point, a court application will be necessary between the surviving parents and the guardian, whereby a court would then take into account the children’s welfare, their best interests, their ages, consider the letter of wishes (although you have to accept that the letter of wishes is not legally binding) for the court then to decide what is best for the children.

There is no legal presumption that a child must live with a biological parent after the death of the other. In assessing where a child should live, the court considers the welfare of the child above all else. They will consider the respective pros and cons of each available option and decide which arrangement would best meet the physical and emotional needs of that particular child. The wishes and feelings of the child concerned will be an important consideration, but the weight attached varies, depending on the age and maturity of the child concerned.

Can my new partner/spouse be granted parental responsibility?

There are other ways that a step-parent can be granted parental responsibility so that they also have a say in important decisions involving the children. This can be done, without involving a court process, by way of a Step-Parent Agreement.

This document gives step-parent parental responsibility along with biological parents. By entering into a Step-Parent Agreement, the step-parent’s role and involvement in the child’s life is recognised already and continues after death.

To enter into such an agreement, you will need to be married to the child’s parent.

If that parent is the only person with parental responsibility, they can make a formal agreement with you. If the child’s other parent also has parental responsibility, both parents need to agree to this.

The agreement must be filed to make it legally binding but does not involve you going to court. Alternatively, you can apply to any family court for a Parental Responsibility Order if the other parent does not agree to entering into the agreement, but that is a formal process where the court then must consider all the circumstances and what ultimately is best for the children.

For advice and guidance, please do not hesitate to contact our Private Client Department or Family Department.

Authors Chrys Wall & Sarah Ingles

Sarah Ingles

Sarah is Partner and a highly experienced Solicitor, dealing with Wills, inheritance tax (IHT) planning advice, Powers of Attorney, applications to the Court of Protection, Trusts and administering estates. Sarah has a particular interest in the administration of high net worth estates, including those with elements of agricultural and business property relief.

Click here to learn more about Sarah Ingles

Chrys Wall

Chrys is an experienced Solicitor, specialising in Family Law; relationship breakdowns, divorces, financial matters, Children and cases involving domestic violence. She is accredited by the organisation “Resolution”, certified to assist in Financial Provision and Children Law work. Details of the organisation Resolution can be found here.

Click here to learn more about Chrys L Wall