Essential Family Planning

In light of the recent media coverage relating to the birth of the new Royal baby, His Royal Highness Prince George of Cambridge, it would be a good time to stress the importance of making a will to new parents, and specifically to appointing a Testamentary Guardian for their minor child or children (the child) in the event that their parents face a tragically premature death, possibly leaving the child in the hands of the Social Services.

It is possible for a parent with parental responsibility (the parent) to pass this responsibility to someone through a will to a guardian of their choice. The choice of guardians by the parent will hopefully reflect the way the parent would wish the child to be raised after their death and to allow the parent to have an input in the way their child is raised. The people they appoint are known as ‘Testamentary Guardians’.

This appointment need not necessarily be in a will, as it can be made in an additional document or deed providing it satisfies the requirements for appointing a guardian or guardians under the Children’s Act 1989, as amended by the Adoption of Children’s Act 2002.

By incorporating the guardianship clause into a Will the parent can also make important decisions regarding the welfare of the child and how his or her inheritance will be used in the process of raising the child with specific regard to their educational and maintenance needs.

This will enable the trustees of the child to either draw on the income or the capital of the legacy left by the parent so that it can be used for either education or their welfare. This is usually catered for by the use of a trust fund and it may be desirable to include those named guardians as trustees of the fund, thus allowing them freedom to follow the parent’s wishes.

The will can direct how the parent would wish their child to be bought up; examples of this could be the parent may wish their child to follow a particular faith, for example, being raised as a practicing catholic or to attend a particular school. These directions are in no way binding but merely act as a statement of wishes of the parent.

In all cases it is important that any parent naming a Testamentary Guardian in their will should first of all ask those concerned to ensure that they are happy to undertake such a role. The Testamentary Guardian appointed can disclaim his or hers appointment by a written signed document within a reasonable time period.

The role of appointing a Testamentary Guardian is one which cannot be taken lightly and there are many pros and cons which need to be considered. The appointment of any Testamentary Guardian should be carefully considered by the parent and talked over with them to ensure that all the wishes of such parent are met and the guardians understand how the child should be raised.

However the most important part is we need to ensure that clients with young children are actively considering this situation, and to ensure they put these requirements into their wills to ensure their minor children are protected if the worst was to occur.

Please contact us on 01743 285888 and ask for Michelle Parry or by email on michellep@terry-jones.co.uk if you require more detailed advice regarding the points raised in this article or any other enquiries relating to the preparation of a Will.
 

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