appointing Legal Guardianship for children under 18
By Janet Cribb
A guardian is needed for any child under 18 (unless he or she marries before that age). In some Wills they are referred to as ‘minors’ or even ‘infants’, but we prefer the simple and easy to understand phrase ‘my children who are under the age of 18’.
Guardians can be appointed by a Deed, but it is more common to make the appointment in a Last Will and Testament. If there is no guardian appointed then one must be found through a court process. The legal situation is that the child or children are made wards of court, which means that the government of the country where you are is then responsible for the welfare of the children. If the children were born overseas then the government of that country will have a much stronger case for applying the local laws to the situation. If you are an ex-pat then this is a very important consideration. Normally the Social Services department will get involved and try and find a person or family who is willing to accept the responsibility of raising the children as their own. They will start with the immediate family, such as brothers and sisters of the children’s parents, or the grandparents of the children. This can lead to family arguments, but the court of the land in which you lived at the date of death, or in which you died on holiday, will have the final say. In the meantime the children are kept ‘safely’ in a children’s home or with foster parents. The authorities will not hand the children over to anybody all the time there are unresolved issues to do with their welfare. Social Services will be concerned, one hopes, with the children’s mental and emotional well-being, but different countries have different standards and interpretations of this matter and what you might consider basic needs might not be met, especially if there are cultural differences. Almost certainly the local Embassy of your home country will be able to help; they must, however, abide by local laws. Nobody will be able to wave a magic wand and cut through any red tape or legal restrictions, embassies or consulates may, however, be able to smooth the way a little.
If you live abroad then we suggest that, as well as the appointment of a legal guardian, you also request a temporary guardian from amongst your good friends who live close by to take care of the children until the appointed guardians arrive. We cannot make this a legally binding appointment, but I do believe it helps considerably to have a simple phrase at the end of the Will to take care of this very important matter. The ‘temporary Guardians’ can then look after the children, especially if they are really small, until the appointed guardians board a plane to wherever your children are, which would take a few days at best, and maybe more than a week, depending on the time of year. Most airlines will be sympathetic and do their best to help.
Children will only be allowed out of the country with the legal guardians and so a local Will made where you are will save a lot of trouble for the guardians, it can be produced immediately confirming the appointment. However, all Wills (except for those simply covering offshore financial assets in tax havens) should have the appointment of Guardians. This is a very strong argument for having more than one Will if you are domiciled in a different country to the one where you live, whether or not you own real estate in either place.
Perhaps there are financial problems as well. Do make sure you are adequately insured, there are numerous Insurance policies with different providers, most banks will sell you a simple life policy to help support the children and their guardians through the remainder if the years of dependency. Ideally this should be done during the course of sensible financial planning with a qualified advisor.
One question I am often asked is how to go about making extra room in the guardians house should they ever have to look after two or three extra children.
If it is for the benefit of the children then money can be released from the estate to provide for extra accommodation. However, there is the potential for problems later when the children grow up. Let’s take a particular scenario to illustrate how this might go wrong.
John and Jane die in a car accident. Their 3 children were in the back seat of the car and, because they were little and strapped safely in their seats, 3 year old twins Sarah and James, and Tom, and a few months old, all survived unhurt.
John’s brother David is now the children’s guardian, and with his wife Sally will take Sarah and James and little Tom into their own family and raise them with their own children Peter and Harry, aged 7 and 4. Sally is expecting her third child in 4 months time. Where their fairly standard 4 bedroom house and small garden was adequate for their own family it will now be impossibly small. They must either move to a larger house or extend the one they already have. Both these options will cost significant amounts of money, and David is already stretching his budget to pay his mortgage.
If David asks the Trustees for some cash to solve the problem of space then several things might happen.
- The Trustees lend David an amount of money from the Trust Fund, set up by the Trustees of your Will, for the benefit of the children to build an extension.
- Ditto to move to a larger house and buy it as tenants-in-common with the Trustees so that the Trust fund owns half and the guardians own half.
- David takes a loan from the Trust Fund.
- The Trustees give David an amount of money sufficient to solve the problem.
Either of the first two situations has the potential to cause serious problems for David when his brother’s children reach 21. They will then be the legal owners of the assets previously held in trust for them. If they are under the influence of other people outside the family, or even if they simply are not the nice people their parents would have liked them to be, then they could put David under pressure and insist that he pays back the money he was ‘loaned’, with the accrued interest. They could in scenario 2 force the sale of the property in which David, Sally and their children live and which has been their family home for many years.
In scenario 3 David would have to pay back the loan, with interest, when the last of John and Jane’s children left home. After all, the children are only under the care of their guardians until they are 18. He will be considerably older and might not be able or willing to borrow a substantial amount of money.
In scenario 4 the children may, (and would probably succeed), issue a legal challenge on the grounds that the Trustees acted wrongly in giving the Trust assets to someone who was not named as a beneficiary. If David was also a Trustee then there could also be the added complication of acting in a conflict of interests situation.
You can see that this is a minefield and could cause the family to fall out.
If John and Jane leave a legacy to David in their Wills, made conditional upon him accepting the appointment of Guardian and index linked, and then this would ensure that David has enough money to provide accommodation for the extra children. That money is his and will never be held on trust for the children.
Another way of dealing with the problem would be for John and Jane to make David the beneficiary of a separate life policy which only pays out if they both die.
This will run smoothly if you think it through properly and make the right provisions.
You will notice that only David has been appointed as Guardian of the children, not David and Sally. This is deliberate. If anything happens to David and he dies before John, then if Sally is appointed as guardian as well as David the appointment still stands. Sally may not be able to cope on her own, or may marry someone else later. You will then have lost the family connection and John and Jane’s children will not necessarily stay in touch with their blood relatives.
Our advice would be to appoint your brother or sister (or other relative) on their own and make alternative appointments in case your first choice fails for any reason. It is a good idea to ask permission first from your intended guardians, they may refuse the appointment. Indeed, if David was seriously ill at the time of John’s death then he might have to say no. If he had developed a dependency on drugs or alcohol then he might not be allowed to have the children anyway. A back-up already appointed in the Will would take care of any unforeseen problems.
One last thing, if you have a good job overseas on a high salary with a great big death in service benefit then it is likely that your children’s financial status will be different from that of their cousins’. Most ex-pats are making more money than their siblings who stay at home. One family for whom I drafted a Will included their guardian’s children as beneficiaries of the Trust for education so that they could all go to the same school and enjoy the same enhanced lifestyle of their new brothers and sisters.
All these things can be taken care of in the Will, but it is also very important that you leave some notes for the guardians about your wishes for your children’s future. It is also the opportunity to record for the benefit of all, their likes and dislikes, fears and phobias, allergic reactions and dietary needs so that the transition is as smooth as possible.
It is also important if you leave money to the guardians that you explain why in your own words. The letters which accompany a Will may be used to establish the intention of the testator if there is ever a court case to contest the Will.
You will need to seek proper financial advice for some of the above; we are simply drawing your attention to the possibilities here, and the items which should be discussed with your professional money manager.
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Janet Cribb
Channel: Wills & Living Trusts |
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