On average in the United Kingdom, a child loses a parent once every 30 minutes. This bereavement is often accompanied by other losses, brought about by the change in circumstances. A child may find that he or she is faced with moving house or changing school, with the resultant loss of friends and familiar surroundings. 

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Whilst it is not possible to protect children entirely from these losses, it is possible to take steps to ensure that the devastation caused by the death of a parent is not compounded by legal complications and uncertainty about the child’s future care. 

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Although it can be upsetting to consider what would happen to your child after your death, to make plans for his or her future security is an act of caring parenthood. This guide is intended to give you some ideas of the legal and practical steps that you can take to help your child in the event of your death. 

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What happens to children on the death of a parent? 

 

The answer to this depends on your particular circumstances and the plans that you have put in place. If there is no surviving parent with ‘parental responsibility’ (see below), and no appointment of a guardian has been made, then the child becomes the responsibility of the Court (a Ward of the Court). Until such time as the Court appoints a guardian, the child may be taken into care. 

 

In contrast, if a guardian has been appointed, then responsibility for the child’s care passes on the second parent’s death to that guardian. The guardian is likely to be a person known to the child or perhaps someone such as a step-parent who has been living with the child. 

 

The naming of a guardian in a Will, is only a nomination. A court must then issue a certificate, known as letters of guardianship, before the formal appointment of the guardian(s). Obviously, where child guardianship preferences are documented in a will and a written guardianship document, it is reasonable to expect this to be relatively straightforward matter.
 

Appointing a guardian 

 

Perhaps the most important step you can take in making plans for your child is to appoint a guardian. A guardian is a person who will effectively ‘step into the shoes’ of a deceased parent and assume responsibility for the child. 

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Appointing a guardian, rather than leaving the decision to a Court, has several important advantages: 

you can choose the person whom you would wish to care for your child, rather than leaving the decision to a judge.

 

if you feel that it is appropriate, you can discuss your choice with your child so that he or she has the security of knowing who will take care of them in the event of your death you can discuss your wishes for your child’s upbringing with your chosen guardian and leave him or her a detailed letter of your wishes you can discuss your choice with your family and pre-empt any dispute about who should care for your child after your death. 
 

Who can appoint a guardian? 

 

A guardian can be appointed by any parent with ‘parental responsibility’ or by a Court. Once a guardian steps into the shoes of the parents, they obtain ‘parental responsibility’. 
 

What is parental responsibility? 

 

The legal concept of parental responsibility is defined in the Children Act 1989 as being: 

“All the rights, duties, powers, responsibilities and authority which by law a parent has in relation to a child and his property.” 

A person with parental responsibility has the right to make important decisions such as a child’s: 

• Education 

• Place of residence 

• Name 

• Medical treatment 

• Religious upbringing 

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Who has parental responsibility? 

 

Fathers who were not married to the mother at the time of the child’s birth and whose birth was registered before 1 December 2003 do not automatically have parental responsibility, even if they subsequently marry the mother. These fathers can receive parental responsibility by agreeing and signing with the mother a formal document known as a Parental Responsibility Agreement. If the mother does not agree to grant parental responsibility then the father can apply to the court to request a Parental Responsibility Order. 

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You may be surprised to learn that not all parents automatically have parental responsibility. 

 

Those who do have parental responsibility are: 

• Parents who are married when their child is born

• Unmarried mothers

• Unmarried fathers who are named on the birth certificate where the birth was registered on or after 1 December 2003

• Anyone who has a residence order in their favour

 

How to appoint a guardian - legal matters

 

The Children Act 1989 introduced a simple method for appointing guardians. It is sufficient that an appointment be made in writing, dated, signed by the person appointing the guardian and clearly showing the intention to appoint a guardian.

A more common method of appointing a guardian is to include the appointment in a Will. Making the appointment in a Will has the added benefit that related financial arrangements can be included in the same document.

 

Choosing the right guardian - practical matters

 

Each parent will have their own beliefs and priorities regarding the care of a child and it is these considerations which are at the heart of choosing a guardian.

When deciding who should take care of your child in the event of your death, it may be helpful to bear in mind the following points:

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• Do you trust your guardian to raise your child as you would have wished?

• Will your guardian’s lifestyle be able to accommodate your child? If not, are they prepared to make changes?

• Does your guardian have children the same age? Does he or she have experience of parenting?

• Is your chosen guardian fit enough to cope with the demands of a child over a number of years, particularly a young child?

• Is your guardian known to your child? Do they get on well together?

• Does your guardian get on well with other members of your child’s family?

• Does your guardian live locally? Will your child have to move school?

• Will your guardian come to live in your home? If not, do they have suitable accommodation for a child?

• Is there likely to be a dispute over your choice of guardian? If so, is your guardian prepared to deal with it? Is there another choice you could make to avoid such a dispute?

• If you (or you and your partner) are choosing more than one guardian, will they be able to work well together? Is it clear with whom your child will live?

• Does your guardian share those values which are important to you - perhaps in relation to religion or education?

• Have you discussed the proposed appointment with the guardian and established that he or she would be willing to accept the appointment if the time comes? 

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Other matters - financial provision for your child

 

When parents die, the issues relating to the care of their child are necessarily related to the financial arrangements that are to be made for that child.

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There are many ways of organising finances on behalf of a child and the most appropriate course of action will depend on the age of the child, the amount of money involved and all the surrounding circumstances. However, some of the questions that can be addressed in a well-drafted Will are as follows:

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• How will your child’s upbringing be paid for?

• Is money to be held in trust for the child beyond the age of 18?

• Will your chosen guardians also be the trustees of your child’s fund? If not, can the guardians work well with the trustees?

• Do you wish to make a direct gift to the guardian for his or her own benefit?

• If you own a property, is it to be sold after your death? If not, how is its maintenance to be paid for?

• What can the trustees spend your child’s money on before he/she reaches 18?

 

Next steps

You can obtain more information regarding choosing a guardian and supporting children after the death of a parent from the following organisations:

The Child Bereavement Trust: www.childbereavement.org.uk

Childhood Bereavement Network: www.ncb.org.uk/cbn