What Happens To The Kids When Mum Dies: Guardianship Considerations

With Father’s Day fast approaching, it seems an appropriate time to discuss important points about Guardianship for minor children and how vital it is that your Will is updated to reflect your wishes, should the worst happen whilst your children are still under the age of 18.

If one parent dies whilst the child (or children) is still a minor then guardianship will automatically pass to the other parent, as long as they have parental responsibility.

What is parental responsibility?

Parental responsibility is defined by the Children Act 1989 as ‘all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child’. These include, but are not limited to, providing a home for the child and protecting and maintaining the child.

In the UK, mothers automatically have parental responsibility from the birth of the child, but fathers only have parental responsibility if:

•  they are married to the mother at the time of the birth (even if they subsequently divorce); or
• They are listed on the child’s birth certificate (from 2003 births onwards).

Alternatively, fathers may have also obtained a court order or signed an agreement with the mother to confirm that they have parental responsibility for the child.

https://www.gov.uk/parental-rights-responsibilities

Appointing guardians

This definition of parental responsibility means that when a mother dies guardianship of the child may not automatically pass to the father, if he does not have parental responsibility. Instead, guardianship would pass to those named as guardians in the mother’s Will.

Alternatively, if the father does have parental responsibility, with guardianship passing to him when the mother dies, it is vitally important that the father puts in place a Will or updates his current Will.  This will ensure that he has appointed the appropriate guardians to look after the child, should he then die while they are a minor.

Considerations

It is important that everyone has a Will to ensure their wishes are carried out when they die, but even more so for parents with minor children. Careful consideration needs to be given to choosing guardians who will take care of the children if they are still minors, but also to any financial provision for the children before they are able inherit.

Lack of agreement on choosing guardians can sometimes be a barrier to parents proceeding with making Wills, however parents could choose different guardians in their Wills. A person’s Will is a completely separate document from another person’s Will, whether they are married, in a relationship and/or have children together.

This just means that when the first parent dies, guardianship will automatically pass to the surviving parent, if they have parental responsibility. When the second parent dies their guardianship choices would be honoured, if the children were still minors.

Key points

• Not being able to agree on guardians should not delay parents in making Wills as it is important that there are clear wishes for the children, should the worst happen.
• Fathers should make sure that they have parental responsibility for their child in the eyes of the law, no matter the relationship they have with them currently (even if the child lives with them, they pay towards their upbringing, or they visit them often etc.).
• All parents should make sure they have made a Will to appoint guardians and set out financial provision for the children.

Further information

Our specialist Lifetime and Estate Planning team can assist with putting your Will/s in place including guardianship clauses and discussions about financial provisions.