When you are planning your will, one of the most difficult things to think about and discuss is making arrangements for the guardianship of your children. No-one wants to think about their children growing up without parents around; but it is something you should really think about.
The chances of this aspect of your will coming into effect are very slight as it is extremely rare for both parents to die before their children reach 18. Yet the possibility of something happening is what will planning is all about. Surely it is better to have your children cared for by someone you wish, in the way that you want, than having the courts decide the future of your children?
Section 8 of the Children Act (1989) allows the court to make the order it deems in the best interest of the children, but by making a declaration in your will, the court has a very clear idea about your wishes, which they would not otherwise have.
Normally when a couple have divorced, the surviving parent would look after the children, however this is not always ideal. If your child has lost touch with the other parent, or there are issues of neglect, or even emotional or physical abuse in the past, then by appointing a Guardian, you are making a clear statement of your wishes. Marlow Wills can advise you in this difficult area as we have over twenty years experience in dealing with Children Act matters and know what the Court will take into account.
Another thing to take into consideration when thinking about guardianship of your children is who will look after the finances. This is especially important if you plan to set up a trust fund through your will. At Marlow Wills, we include a clause which ensures that the Guardians of the children can access the trust funds for the maintenance and education of the children, with the Trustees' approval. Your Guardians will therefore never find themselves out of pocket as a result of caring for your children.
It is for this reason that the Trustees (usually also the Executors) should not be the same people as the Guardians. This provides for an element of independence between the two roles, and spreads the burden of responsibility, allowing you to have the best person looking after your children and the best person dealing with the money provided for the children.