Legal guardian question

[MrsPotterings]

My brother has become seriously ill in hospital and his prospects look terrible, sadly. He lives alone with his daughter who is 16. The mother is estranged and lives in the US. My question is, who becomes her legal guardian were he to die? He won't have written a will I don't think. How does this work?

I'm sorry to hear about your brother. You might want to ask MN to post this in Legal Matters for you as I think you'd get more and better informed replies than in Chat. I'm not a lawyer but I think the basic answer is that it's quite likely your niece's mother still has parental rights for her daughter even if they've been estranged a number of years (unless a court process had been gone through to formally remove them which is quite unusual and long-winded). So technically it's likely her mother would be her guardian (well, not a guardian as she'd be a parent, but have legal parental rights and responsibilities). However in the UK (precise laws may differ particularly in Scotland/NI compared to England/Wales) the child's best interests always have primacy over the wishes of the parent or guardian, and at 16 her own wishes and feelings would be very strongly determinative, plus educational and social stability would be considered important, possibly more so than in the case of a much younger child where the disruption of a total upheaval e.g. to move abroad to live with a parent would be considered worthwhile considering they have their entire childhood ahead compared to an older teen who will be an adult in a few years. So although it always depends on the exact facts and circumstances, it's quite possible that it might be better for her to remain living in the UK with a relative she already is familiar with and in the same area if possible so she doesn't have to move schools - if this is what she wants too then if need be it's likely a court would endorse that plan, potentially even if her mother opposed it. The relative might be able to be awarded a special guardianship or family/friends foster carer arrangements to give them quasi-parental rights e.g. to consent to medical treatment and liaise with school/college etc.

One thing to check is if your brother has any life insurance, pension arrangements or other financial arrangements that may pay out in the event of his death, and if so whether his DD is named as beneficiary and who the trustees of any money would be. Again the general assumption if he hasn't asked for it to be otherwise can be that her other legal parent would act as a trustee of any money coming to her and if they are estranged that might not be the best arrangement. If he still has capacity it might not be too late to put his affairs in order by naming an alternative/additional trustee?

Thank you. I will repost there.

maxelly I was wondering if it made any difference to the mother's legal status that she is a US citizen living in the US.