Probably stupid question about PR

[StiffyByng]

This is probably one for a kind lawyer with a few minutes spare! I read a comment in passing that anyone named as a guardian in a will automatically acquires PR. My DH's ex died last year. Although she was the NRP, she had PR. In her will she appointed two trustees, both strangers to the children, and named one of them guardian after her death. Obviously this has been ignored, as it's unecessary, but this doesn't give him PR, does it?

I'm not a lawyer :) However, I can't see how anyone could end up with PR of a child, when the child has another living parent . Also, I believe, that PR has to be awarded by the courts, you can't just 'hand it on'.

no - different type of guardian I think (I'm not a lawyer and know nothing about this by the way!). I think that if you are granted a guardianship order by courts you get PR - not if you are named guardian in a will. DH's ex can't grant PR, only court can.

This is reassuring! We have enough problems sorting this will out without some random idiot having PR.

As there is a surviving parent with PR and, presumably, she did not have a residence order in her favour, the appointment of a guardian in her will does not take effect unless your husband dies. If he also appoints a guardian in his will that could, after his death, lead to a situation which will have to be resolved by the courts.

Just to add that both ginmakesitallok and ChippingInLovesEasterEggs are wrong. A guardian appointed by a will gains PR automatically when the appointment takes effect. No court order is needed. Furthermore, if the mother in this case had a residence order in her favour which was in effect at the time of her death and was not a joint or shared residence order with the father, her appointment of a guardian would take immediate effect despite the fact that the child has another living parent. Similarly if the father did not have PR the mother's appointment of a guardian would take immediate effect.

However, as the mother was the NRP I presume there was no residence order in her favour so, as stated earlier, her appointment of a guardian won't take effect as long as your husband is alive.

Oh, thanks, prh, although potentially bad news in the long run as I'd rather assumed that his will would be the one that the courts paid attention to and hers wouldn't be looked at. I shall encourage my husband to remain alive. But as long as he currently has no rights, that's good enough for now.

Having said that, I don't think the man named has the slightest interest in actually having the kids so is unlikely to fight, say, me or the grandparents in court for them in the event, given the expense and the lack of any possibility of winning. He's only met them twice!

And yes, the residence order was with my husband.

Residence order or not, a testamentary appointment of a guardian only takes effect on the death of all of those with PR. Those appointed in the wills of both parents will get PR.

Collaborate - Can I refer you to Children Act 1989 Section 5(7)(b):

Where immediately before the death of any person making such an appointment, a residence order in his favour was in force with respect to the child or he was the child?s only (or last surviving) special guardian the appointment shall take effect on the death of that person.

Stiffy has your DH appointed you as his DCs guardian in his will in the event of his death? Presumably this would be advisable and a court would look more favourably on you than a stranger if disputed. I havent a clue about this but just reading the replies it seems a stranger could take the DCs is your DH were to die.

We're about to make wills (just waiting for new baby, due tomorrow). I will be nominated as guardian. We are also going to get me PR for them though - just waiting for legal advice on something else vaguely connected. So assuming he makes it through the next two weeks or so, I'll then be his nominated guardian, and shortly after, have PR for the kids. The guardians in his current will (invalidated by marriage - yes, yes, I know) are his parents, who are very close to the children.

Given the trouble my husband had in obtaining the residency order in the first place, it seems inconceivable to me that a complete stranger, a single man, living miles from the children, with no connection to them, would be awarded residency over me or his parents by the courts, but I know it's sensible to make sure that we never need to go through the stress of making sure of that!

So just checking the Children Act stuff, given that the ex had no residence order, would I as an existing holder of PR need to die before this man's appointment would take effect? Does the fact that my husband has or had a residence order (not sure if it makes any difference now his ex is dead) make any difference to the precedence of the nominations?

Prh - my bad. Apologies Stiffy. These questions don't crop up every day.

The guardianship clause will give you PR on DH's death. His ex's appointment will also vest on DH's death (it only doesn't vest if there is another parent alive with PR at date of death).

Don't worry though. Guardianship/PR is not the same as residence. Can't see residence being an issue.

The existence of the residence order would have meant that DH's appointment of you would take effect on his death whether or not his ex was alive at the time.

That's good to know, thanks. Would it be possible to get this man uninvolved in any way, ie asking a court to remove PR? Although he is a stranger to the kids, we already know through his actions as a trustee that he is bent on pursuing a pretty unhelpful agenda, and DH finds the idea that he'd have any involvement at all in the children's lives beyond that which he unfortunately already has very distressing.

I'd guess you can. A father granted PR by the court can have it removed.

Stiffy - I'm glad that for you it works out this way & I'm sorry the information I was given and handed onto you was wrong.

However, in general, that's bloody scary. So basically if the father has PR & residency and appoints the step-mum guardian in the event of his death - the step mum has far more 'rights' to keeping the children than the Mother even with PR does? Bloody hell.

It's also scary that in situations like this (where the SM is lovely and the kids live with her & their Dad) that the Mum can appoint someone in her will and that person could end up with more 'rights' to the child than the SM if the Dad dies also.

Gah.

I'm not sure what the law should be, as I guess 'The nicest person with the kids best interest at heart, where they are loved and have a stable home' is just a tiny bit subjective.

Chippy. I know what you mean. I suppose in the first situation, the NRP would have to apply for residency through the courts. In our case, it's hard to imagine what would happen as although I am a fairly new installation, the concerns about the NRP were so great, I can't see she could have been successful. In other cases, where residency was less clear cut, the NRP would presumably have a chance of winning the case.

The second one is the worrying one for us, although if I understand, all he would get would be PR, as long as we get on and sort out wills. We've found that all sorts of stuff can be done in a will, and by the people given power by those wills, which runs against the wellbeing of the beneficiaries and, frankly, natural justice, and there's not a great deal that the law can do if you don't have the money to pursue almighty legal battles. Sorry. Bad news today and it's profoundly frustrating.

It's just hard to believe that a parent would have to apply for residency through the court to get their children from a step-parent in the event of the other parent dying You'd think the other parent would naturally get the children (whether that's a good thing or not) and that the step-parent would be the one having to take it to court to 'prove' it's not in the childs best interest.

It's hard to see how, given the concerns about her were so great, that anything in her will should grant someone else more rights than a parent or a step parent. You would think that if she was 'unfit' & had no 'rights' that she wouldn't be able to nominate someone else to have those 'rights'?!

I just can't understand how he is 'entitled' to PR? He doesn't know the kids, they don't know him and he's been 'given' PR from someone who wasn't 'fit' to have residency of her own children?!

It's incredible how people some seem to have more power through their will than they did when they were alive yet others seem unable to dispose of their assets as they see fit.

What bad news did you get today? (Don't feel you have to say if you don't want to!!)

PR is not the power of life over death FFS. It's the right to be consulted on major decisions. It isn't the same as residence. If there is a dispute as to residence then the status quo will be preserved until the court makes a final order, unless there is a risk of harm in which case the court will make an interim order.

The mother in this instance cannot weild more power through her will than when she's alive. She has PR now. The guardian she appointed would have PR in the event of the father's death. That will be no different to the PR exercised by the mother.

Stiffy - if you're really worried about it you can always apply for a shared residence order now. The other step-parent would not need to receive notice as they do not yet have PR. Then, if your husband were to die (is it likely?) you would still have the benefit of the residence order.

Hi Collaborate

No, thankfully and fingers crossed, this is all hypothetical. It's interesting how real it all starts to become. I think it's because we've been through so much already that all these things become possible. The reason I'm wary of even PR is that the ex rather abused it, trying to bring endless spurious court action regarding every decision about the kids - unsuccessfully but expensively on our part.

The person in question isn't her partner but her second cousin, who she barely knew until the divorce and who has met the kids twice in their lifetime. However, he and his fellow trustee have clearly been handed some sort of posthumous line to follow to make our lives as hard as possible and my poor husband is now imagining me having similar sorts of issues with him as he had with his ex. Unlikely I think, but he's pretty scarred from some fairly extreme behaviour on his ex's part. The residency order is a good idea - presumably it could be done pretty much as a formality?

I've written a bit on here about our headaches before, but basically, the ex died before the financial settlement was made, and therefore on her death half the marital assets disappeared into her estate. The other half of it was entirely taken up with paying my ex's legal fees from the extensive legal action he went through before she died (she was on legal aid). So we can't afford to buy a house in the area we currently live in, or anywhere very nearby. We would just move somewhere cheaper but our work is both in central London and not relocatable, and my SD has serious medical and social issues which create problems with all sorts of things, including the need for a house that can be adapted for someone in a wheelchair. The trustees refuse to consider using any of the (very substantial) trust - it also contains a large inheritance from the ex's parents - to invest in a house for us, or in any other way divest the money until the trust ends in over a decade. We have been exploring ways of getting the money and were in the process of pursuing an Inheritance Act claim, on the basis that our solicitor advised that our marriage happened after the death, and therefore my husband still qualified as a claimant, but several thousand pounds of fees down the road, counsel's opinion is that he does NOT qualify. So we have nowhere else to go really, and trustees who are happy to see the children suffer on the principle that they are sticking it to my husband. Frustrating, the children's maternal aunt is fully prepared to represent them in the IA proceedings and to give my husband the money he needs, but the trustees are fighting it all the way. And despite the fact that they are appalling trustees (won't produce accounts, have spent money they shouldn't have spent, have stolen goods from the estate, have behaved carelessly with money coming into the estate and above all, have no contact whatsoever with the children), there's sod all we can afford to do about it.

Collaborate: PR is not the power of life over death FFS. It's the right to be consulted on major decisions There is absolutely no need for the FFS. If you don't want to join in the discussion then don't, there's no need to have an attitude over it. I know what the difference between PR & Residence is thank you very much. If Stiffy's DH died and she had residency I really don't see why someone, who doesn't even know the children, should have any say in their lives simply through the will of their mother. No-one knows how likely it is someone will die. No-one.

Stiffy - what a shitty, shitty situation :( You have to wonder how something that is so wrong can be upheld like that don't you. That money should be being used to benefit SD not to line the trustees pockets. Is there anyway you would qualify for legal aid now?

Oh please no arguing! And although I know exactly what you mean, Collaborate, it is a bit annoying that this idiot would have any say at all over the kids really - I know my husband finds the idea deeply hurtful. Of course, in his position as trustee, he ironically already has quite a lot of power over them, and us, so the PR would be less than that really.

No legal aid for us, Chipping. It's not lining their pockets exactly, although who knows, but it's certainly not being used in the best interests of the kids, particularly as, until the current legal proceedings, all we've ever sought is an investment of money, so a pretty sound place to put their cash really.

Yes, any trustee with any sense would see that the money would be well invested in bricks & mortar and help to provide DSD with the house she needs now. You really have to wonder why life has to be so bloody difficult sometimes don't you.

Stiffy...what a nightmare situation for you all. Unbelievable that a real mother would go to such lengths to cause problems which ultimately damage the interests of her own child just to spite her ex! Awful! Actually I can believe some mothers behave like that. My BILs exP is really screwing up her children in a relentlessly vindictive campaign against BIL.

Hopefully for you most of the nastiness is left behind with her demise, try not to get upset by it any more, you've done the best you can for the DSD, just try to put it all behind you now.

It IS frustrating, yes, but we tell ourselves there are people in worse positions out there (doesn't always work!). And, much as I hate to say it, if she were still alive, not only would we have huge amounts of ongoing stress, and continuing legal bills no doubt, but the children would have suffered far more as her behaviour was damaging them.

We are going to sort out the residency order I think, which will give DH peace of mind. Thanks for the advice on here.