Guardianship in our will - advice

[PurpleThistle7]

Just found this board while I'm trying to work out what I'm saying in a legal sense.

My husband and I have two children and are immigrants so have no family around to take them if something happens to us. We have a will in place giving guardianship to a friend and our executor is another friend - they both know the children quite well and have volunteered to do this.

However, our friend (let's say Laura) who is the guardian has two children of her own. They both have recently had quite a lot of mental and physical health issues and she and her husband are really struggling. It seems insane to put two more children into that household and I think with the best will in the world, 4 children would be an awful lot.

So my husband was talking about this with our other friend (let's say Jane) and she said that if something happened to us she'd be very willing to look after the children. She's single and lives about an hour away so our plan would be that she would move into our home and the children would stay put. It's not a perfect situation either - the children don't know her quite as well and she's never been a parent and is single - not that either of these things mean she couldn't do it, but she chose not to have children so I'm not sure she entirely understands what it's like to be committed at that level.

Our children are 13 and 9 so it's a good few years of responsibility.

What I'd like in my will is to have both these options on the table, and for them to have a conversation - with the kids - if something were to happen to us and have the ability to have either situation happen, depending on what's happening with Laura's children by then, or Jane's financial situation or job commitments or anything else I can't quite imagine. My lawyer said I have to pick one, and they wouldn't have the ability to 'assign' someone else to be responsible. So if we pick Laura and she genuinely can't do it our kids would end up in care as she couldn't devolve responsibility.

Finances aren't the issue here, we have various things in place.

So my question is if I'm not being clear about what I'm asking or if this really isn't possible or if there's another way of wording it in a legal document to have options available to our guardian(s). My lawyer just keeps saying 'no' but I feel like maybe I'm just not explaining something properly.

Thanks!

I don't think that you can make a will where your minor children get to say who their guardians will be.

"My lawyer said I have to pick one, and they wouldn't have the ability to 'assign' someone else to be responsible."

However, you can list multiple guardians. So, in this example, you could name both Laura and Jane as joint guardians. In this situation they would both equally be responsible.

Alternatively, you could name one of them as the primary guardian and the other as a substitute guardian. So, the primary guardian might be Laura, but, if she felt that she could not cope or did not want to take on the responsibility, then the guardianship would then pass to Jane.

In addition to the will you can also include a Letter of Wishes. This is not legally binding, but you can say in this letter the sort of things that you have mentioned here, "for them to have a conversation - with the kids".

[EDIT]

So, for example, the will must explicitly say this, eg something like "If the primary guardian, Laura, is unable or unwilling to act, I appoint Jane as substitute"

When DH and I did our wills we were told we couldn’t ’give’ our children to anyone, but we should name the person responsible for making arrangements for them. That arrangement didn’t have to be that the children live with that person, eg. If we name my mum but by then she’s too infirm to have them live with her she can make the decision that DHs sister is the best person for the job. I think in that scenario my mum would still be responsible for managing any money we leave for the children.

We’ve named a person from each side of the family, so hopefully they can work together for the best possible outcome for the children should the worst happen.

I think this is what I need to do, thanks. Will call them again.