To really not know who to name as guardian in my will?

[Impsandelves]

We have young children, and really should write our wills.

We are putting it off as we cannot agree who we would name as legal guardians of the children should we both die.

I am not even sure if we get to decide in our will, or if the courts decide? I distinctly remember my parents telling me who would be appointed guardian to me and my siblings should they die - they had it written in their wills.

But I have also heard that the decision is made by the courts, as the closest capable relative.

Another concern is, what if the person appointed their guardian didn't have the financial ability to raise your children? Are you supposed to leave the guardian your estate as well, or part of it, to assist?

Does anyone have any real knowledge of this, and are we being unreasonable not to have at least something put on paper?

Lordy, we REALLY need to sort this. Especially as being abroad and being subject to all sorts of extra regulations. Mumblechum, are you any good on Belgium?

Not if anyone else is making a claim, Mrs DB. So say you appoint your sister as Guardian, and your parents make a claim, the court would be less likely to make an order in the parents favour than the sister, assuming that the sister sees them more than the parents, and also it's generally best not to place young children with their grandparents if there's someone from the younger generation able and willing to look after them.

See, I get the stating reasons for and against people, but doesn't that mean that in the event of deciding what's best, those reasons could be ignored ?

MrsDeeBee- "take heed" means that the assessment will be done on the parents choice. If another family member applied to the court, they to would be assessed. The only time that the court considers seriously an application from family that have not had any contact is when it is the other parent. The reason as to why contact isn't happening needs to be stated.

Right, I get that. Thanks, mumble.

Doesn't help that I have no-one to name !

Remember also, that there will only be court proceedings if there's a dispute.

In 24 years, I've only seen that happen once.

Portofino, sadly, I only do wills for people domiciled in England and Wales.

Mrs- no they will not be completely ignored. There will be a thorough assessment process and there would have to be very good reason why a stranger would be considered above a trusted family friend (such as a conviction etc). Under the law the will left will be taken into account.

The impact of a move out of the area etc would be taken into account. Family is looked at, who are known to the child unless of course the child is a new born.

Kayzr, the children don't automatically go to an absent parent if there has been little or no contact.

Thanks, Birds.

See, I have 'family' that would go to court for my DCs, despite me having it in a will that they are NOT to be placed in their care.

Although I think my reasons are vaild enough, a court may not. And that frightens me, should the unthinkable ever happen.

Mumble- the court gets involved in disputes, but a SW would over look the move of the child. There woud have to be concerns about the placement for this to continue.

What I so in circs like yours, Birds, is make an expression of wishes in the will that the children aren't placed with a certain person, but don't go into detail there, as the will will eventually be a public record. I do, however, advise clients to write a separate letter explaining the reasons for excluding that person, to be considered if necessary by SS/courts/whoever.

That way, they're not airing their dirty laundry in public, bearing in mind that a tiny number of guardianship appointments ever actually come into being, because so few children are orphaned. So the letter can just be destroyed when the children grow up with no one any the wiser, and thereby avoid unnecessary bad feeling in the family.

The court must act in the best interests of the child, those interests donot include being put with people whothe child didnot know.

I have handled a case recently where the children were considered best placed with a person who was not the parents choice, but this was done over time, with contact being given first and the children were old enough to have a say, they wanted to go to the person whothey were put with.

Yes, that's right, Birds. Just out of interest, are you a SW?

In our wills, we named DS's best friend's parents as guardians as all of our family live hundreds of miles away. Luckily he'll be 18 soon, so one thing less to worry about

As I said, scary.

As Mumble said there are very few cases. I have handled more cases where the children have had to be placed whilst parents recover from accidents or one parent, at least. This senario needs to be catered for.

I handle quite a few cases where the parent needs hospitalisation, for various reasons and have to write long term plans, also, the wishes are considered, unless there are good reasons as to why they cannot be.

Mumble- yes i am a CP SW.

See, there are some things you just don't think about aren't there ? Like recovering from an accident. You just assume DH/DP whoever will be there to take care.

I just have to hope my DCs get to adulthood without anything happening !

In terms of finacial ability, the person who the children are placed with can be given money "to stop he family from going into finacial crisis", under the "Looked After" system, which the childen wil be under, even when the assessmnt process is going ahead, so if you were unconscious and your assests could not be drawn upon, this would not stop a good family friend from having your children, if clothes etc were needed the Local Authority can make an immediate payment of £100 (minimum) and more when needed.

The system is there to do what is best for the children and given that parents are considered the best people to make these decisions, their choices will not be overlooked.

Learning an awful lot from this post, thanks for all advice posted.

So it's preferable for the children to be placed with parents' siblings in terms of age consideration, and not grandparents?

Where would the courts look if none of the grandparents were an option, and all siblings are still single?

I don't think the DCs would have to be placed with a 'couple', Imps ?

There would be no reason to reject a sibling just because they are single. Help would be given, as it is for any foster carer.

The age of the child and the age and health of the GP will be taken into account, but age doesn't rule someone out for short term care at least. It isn't unusual for a GP to agree to share care with another relative,tofit in with work committments etc. It really is about what will work for the child and that family, which of course can vary so much.

You would be better updating to suit the changes in your family.

Yes it's certainly something we would need to readdress every few years, our DC's are still very young.

You can certainly appoint a single person as a Guardian.

As Birds says, regular updates, or at least reviews, are the way to go.

I advise all of my clients to look at their wills every five years to check whether they are still appropriate in their current circumstances.

IMO you are best to choose the people who you know will love your children as they would their own. It doesn't matter if this is friends or family, what matters is that they are loved. People don't have 'the right' to have them, the children have 'the right' to be loved & cared for. Of course you should ask the people you intend to name, but there's no reason to tell anyone else you haven't chosen them.

Give whoever you ask time to consider it - don't put them in a position where they have to say 'of course' without having the time to really think about the impact it will have on their life/their family. Tell them what you intend to do, financially, to enable them to afford to do it.

It doesn't bear thinking about leaving it entirely to the court system, so any choice is better than that surely? & surely if you were to die, you would want your children to know that you had thought about them and had trusted x to love & look after them?

It's scary to think about, but much scarier not to think about it!

OP I can relate to the trouble you are having, I have been thinking about this a lot lately. DH and I have yet to write our wills as we have no idea what to do about guardianship of our boys, DS1(19) is old enough to do it but no where near responsible and doubt he ever will be (been in a lot of trouble and has drug issues, left home at 16 to live with exh). Our biggest problem is that ds2 has severe ADHD and other issues and ds3 has severe Autism and learning difficulties.
My mum has never been the same since having breast cancer 3 years ago, and she is 54 now, my dad is pretty useless. Dh's dad is 80 and in bad health, not that it matters as there is no way that even if we both died tomorrow he would cope, and mil died 18 years ago. All of our siblings are either single with no chance of looking after our dc or have a few kids of their own that are younger than ours. What with our dc sn I wouldn't put that on them. To be honest none of our siblings have even seen ds3 for over a year as they just don't bother, any family things that are done seem to be located in somewhere ds3 just wouldn't cope with so one of us stays at home with him.
Does anyone have any ideas? We have no close friends who could look after them so that is not an option. We have everything else sorted, trust funds, specialist trust for ds3, how every thing is to be split but we just can't figure this one out.