Asked to be named as a legal guardian - what do I need to consider?

[LegalGuardian]

NC as this is quite sensitive.

A very dear friend has asked me if she can name me as legal guardian for her dc in her will, in case something were to happen to her before her dc reach adulthood. DC father is still alive but there is a history of abuse so living with him not an option. No other family members really on the scene, apart from friend's disabled sibling.

I am fond of dc and have known them all their lives (but we are not super close). I am of course very eager to help my friend, who has been through hell and is understandably anxious about what might happen to her dc if she was no longer around. However, taking on responsibility for someone else's kids - especially given the background with their dad - is a massive responsibility and I don't want to make such a significant commitment without properly thinking it through. Obviously, I'm talking to my own family about it too as their opinions in this are also important.

Friend has said that she picked me primarily because she would trust me to have dc's best interests at heart, but also because she felt that her dc would be most comfortable with this decision. I'm very flattered to be asked but I want to make a considered decision that is right for me and my family and right for her dc as well.

DC are secondary age, but a good few years away from adulthood. One has complex needs (linked to past trauma etc). I think friend would be able to make adequate financial provision for the dc but we haven't discussed this in any detail, so would probably need to discuss this further. My own financial situation is comfortable but not wealthy.

I'm in my early fifties and in reasonably good health. My own dc are already grown up/off at uni. I work FT in a demanding role and would need to keep doing this. Chances are very likely that, if named, I would never actually be needed to step up to the guardian role as friend is in good health etc at the moment. But of course, you never know.

I would be grateful for any advice on the factors that I should consider before going back to my friend with an answer. FWIW, she will completely respect it if I say no and I don't think it will affect our friendship in any way.

If their father has parental responsibility, surely the default position would be that they live with him?

Not sure what the legal position is with regard to parental responsibility when abuse has been a factor. Obviously I would need to check this out. It is my understanding that court granted mum full custody. DC do not see their dad (their choice). I suspect he would contest it though if the situation were to arise, and this is one of my concerns.

I would possibly ask - or ask your friend to ask - a solicitor or two what they think about this. Should he come out the woodwork, it might become a drawn out court battle (time and expense).
Also, as you have said, ask your friend if she can provide for them. And if she could provide 'spare money' ... For eg legal expanses. Or I guess for counselling or the such like ... (Past trauma and then a parent dying).

The age of the children and their wishes and feelings would be considered if the father challenged mum’s wishes as set out in her will.

fWIW, when our children were primary school and younger, our will left our house etc ro my sister and husband. They reciprocated leaving their house and children to us. By the time ours were 13 -14 they asked if anything happened, could they live with our closest friends. They’d grown up with them, were very close to them and their children. We spent lots of time together including holidays. Discussion led to both couples changing our wills so property/children in the event of the awful. It didn’t happen thankfully

legal Guardian, great that yiur friend is getting a will in hand. I’d suggest she seeks legal advice before completing it. Also that she has age appropriate discussions with her children. If they have regular contact with dad - or not - they may feel family links take precedence. It’s a big ask of yiu

My first thoughts are:

your friend needs legal advice given the father presumably still has parental responsibility even though it sounds as if the children would not want to live with them

given the children are secondary age, Social Services would prioritise what their choices are about where to live - they may not want to move in with you!

and of course it is unlikely that your friend is going to die and any of this be needed

My understanding is that she has already discussed it with her dc and they are happy with the proposal... though obviously, it probably feels like a hypothetical discussion for them, which hopefully it always will be.

She has a trusted solicitor and I assume that she would get proper legal advice on this matter but you're right that I should check this and maybe ask for a written summary of the advice given. And yes, good point re financial provision for counselling, legal costs etc.

I need to think long and hard about whether I'm mentally up for a legal fight with the dc's father. I would find this very difficult - hard to argue that kids shouldn't be with their parent if at all possible but equally hard to accept that he should have them when I know what he is like and how he has behaved in the past. I am honestly not sure how I feel about this. But if I say no, I'm not sure who else she would ask.

It's a big decision.

Do they live nearby?

The guardianship appointment only takes effect after the death of the last surviving person with parental responsibility usually. However it might take effect if she has a formal court order saying the children live with her.

childlawadvice.org.uk/information-pages/testamentary-guardianship/

Yes of course, dc wishes would absolutely need to be taken into account, and if social services decided that they would be better placed elsewhere, I would have no issue with that. Just want to think through whether I would be willing to take them on if they did want to come to me.

Yes, fairly near. Not super convenient for their school but not impossible.

Thank you. Will read the link but also ask friend to get legal advice on PR question.

If friend was married to their father when they were born or if he's named on the birth certificate, he'll have PR.

They were married. So I guess that means he still has PR, even if the court has ruled that mum should have custody.

What would happen if mum passed away and dc stated very clearly that they didn't want to live with him? Would it be a Social Services decision? The courts? Or would his PR override any other factors?

I have no experience of dealing with this stuff and don't really know if I'm up to it if I'm honest. The thought of protracted legal disputes fills me with dread. But on the other hand, I wouldn't want to let my friend down or potentially leave her dc to go to a stranger/ or their dad if they didn't want to. Of course, the most likely scenario is that my friend will see them through to adulthood but I feel like I can't agree to her request without properly considering what it would mean in the worst case.

I can't help you with the decision but what I will say is she need to make sure the finances are sorted and would go to you not go with the children. My ex has made it clear he wants to be beneficiary in my will as he would need to provide for the kids- the kids he sees when suits him and won't miss work to support. We also have a history of abuse. So I've left everything to my sister who will have my kids regardless of if she has the kids- this way if ex contests and wins the kids (which is most likely with someone with PR regardless of DV history) he won't get my money. And therefore I know he won't want the kids.

As these kids are older their wishes will be taken I to account but it would be a court fight for you and it will be stressful

If you like the idea accept, o. The condition she has a large sun of life insurance in place and you have a trust you can access to financially support you to fulfil the role.

the court has granted her full contac
t and the father zero. With the children’s choice also being considered he would have no chance

Thank you. I can see where you're coming from. Honestly, I would feel very awkward suggesting that she should leave it to me instead of letting it go with the kids, but equally, I know that she would trust me to do the right thing by the kids whatever happened. Her ex is very money grabbing but I think he would probably want the kids regardless.

Honestly, I'm not sure that I like the idea. I really want to help my friend and I would absolutely want to do what's best for her dc if something awful happened and she couldn't be there for them. I don't know what would happen to them in that kind of scenario if I didn't agree. However, it's a big responsibility, and dealing with bereaved and traumatised children is far from easy - I have some professional experience of this but never in my personal life.

You're right that we would need to ensure that appropriate financial provision was in place, of course.

@LegalGuardian it would be a court dispute between you and him. If there's a child arrangement court order saying they live with your friend she can appoint you as a guardian but he can challenge who they live with. The older they get the more their wishes would be taken into account.

Thank you. That's what I feared.

Lots to think about.