Any child under the age of eighteen must have an adult who is responsible for them. What happens if both parents die in an accident? If there is a Will, we hope that the appointment of a Legal Guardian is included. If there is no Will, or if it is out of date because it has not been re-written since the birth of children, it is a different story.
It is possible to make the appointment of guardians by a Deed which has to be signed and witnessed just like a Will, but it will not deal with the disposition of assets and the setting up of financial arrangements to provide for the children and their guardians. Hence we recommend having both documents in place to ensure that the children are taken into care by the guardians immediately and the assets made available for the children’s upbringing and educational costs as quickly as possible.
If there is no evidence of guardians being appointed, then the State takes responsibility until a guardian is found. If no suitable person is available or willing to do it, then the State remains in charge of the orphaned child or children for the rest of their minority.
The law in most Common Law countries makes the child or children Wards of Court. The court will then supervise arrangements for their immediate care, which could mean a state-run institution, a charitable home, or foster parents.
The court will then ask for applications from people who may be interested in taking on the legal guardianship of the children, or seek to place the children with close relatives. It will consider applications, probably interview the applicants, and then award one of them the right to the children.
This process obviously takes time and the children may well be in the care of their close families if they are nearby. But if there is no family, or even if there is and there is some doubt about the competence or suitable accommodation of the relatives, then the State has the legal right – and indeed obligation – to keep the children in a place of safety.
Godparents have no legal status although most people choose them thinking that these are the people that they would like to bring up the children if circumstances took them away. The appointment MUST be made in a legal document – nothing else will guarantee that the preferred guardians of the children will be appointed as the parents would wish!
If both sets of grandparents apply to be granted guardianship, there is the possibility of a major family rift if they cannot agree. The legal rights are actually with the father’s family if the couple is married! Whichever way the court decides, it will not award the children to either set all the time there is a dispute raging on. At the end of the process, the two sets of grandparents will be at loggerheads and that is a situation, which will benefit nobody, least of all the children.
Families overseas who are isolated from their normal extended family support group are particularly at risk if things go wrong.
So what should you do?
Make a Will appointing the legal guardians of your choice and outlining the financial arrangements that will ensure support for the guardians in their job. Make sure there is sufficient money available for the education and general care of your family. This is a good time to review the adequacy of your insurance cover and education planning.
The appointment of legal guardians is often the hardest decision to make, especially if your children are still young. But the alternative is very unappealing; we think you will agree.