By James Cohen: Why you should appoint guardians

I am at that stage in my life where my (“peers/friends”) are starting to have children and when I ask if they have a Will, their common response is that they do not have the assets necessary to require making a Will necessary. This is not uncommon with 57% of parents not having put in place Wills according to research conducted by Will Aid.

I stress to my (“peers/friends”) that the key reason to have a Will in some cases is to set out who will be guardian of their children in the unlikely event that they both die before their children reach 18. If both parents of a child die without appointing guardians then only the court can appoint the guardian no matter what informal arrangements they have made with family and friends.

The guardian is someone who has parental responsibility over the child. This mean they make important decisions about the child’s life in areas such as medical treatment, living arrangements and education. When meeting with clients, the discussion as to who will be guardian of their children always take longer than who receives their assets on death. It is a very emotive decision where a number of factors can come into play in choosing who should be the guardian.

Parents may want to include complicated provisions in the hope of ensuring that whatever the circumstances their children are cared for. Therefore you can include conditions that a potential guardian must satisfy in order to be appointed. A common example is that the appointment should only take place if the guardian is under a certain age. It is also common to appoint substitute guardians if the initial guardian is unwilling to take on the responsibility or has passed away.

I am often asked how can the parents ensure that the guardian will cope with the financial burden of bringing up the children. This issue can be resolved by:

• Leaving assets in trust for the children but enabling the trustees to apply money for the benefit of the children before they reach 18
• Give a legacy under the Will to the guardian on the condition that they actually become guardians.
• Ensure there is a provision in the Will to lend funds to the guardian. For example they can lend money in order for the guardians to buy a bigger house and the loan can be secured on the property.

Often parents want to give guidance to the guardians on how to use the funds and bring up their children. This can only be done by writing a letter of wishes making it clear how they would like the guardians to act and can include a request as to who should be the successor guardian if the guardian appointed passes away. However, these letter of wishes are not binding on the guardian.

At the end of the day one can only do what they can to ensure their children are cared for after their death, but it is difficult to rule from the grave.

To discuss your options, contact James Cohen, our Private Client expert, who advises individuals and families, both in the UK and internationally, to help them distribute their wealth amongst generations after their death in a tax-efficient manner: [email protected]