If you are a parent with a child you are most likely at an age where the thought of writing a will that would be implemented in the event that you should die may not exactly be at forefront of your mind. However, many family lawyers including Robinson Family Lawyers are asked to help young parents make a will, and one important element of that will be the guardianship of their child.
It might not at first seem something that is relevant to your situation and given the relatively young age and the good health that you and your child’s other parent are in, the likelihood that there would be a reason that your child would need a guardian is slim. That is the case for most parents, and indeed thankfully the need for a guardian never arises.
However, none of us can ever be certain of the future, and whilst it might not be a pleasant thought, there can be events such as an accident where perfectly healthy parents are tragically killed, leaving their child or children as orphans. Obviously, this is not a scenario that you might want to dwell on, but it is worth some thought to at least give you some peace of mind that if the worst happens your child will be looked after.
What that would mean is to ask that your family lawyer to draw up wills for you and your partner or spouse in which you state who would become the legal guardian of your child, and thus responsible for their well-being should anything happen to you.
Whilst this is an action you would take in the hope that it would never need to be implemented, there are parents who create such a will knowing that it will come to pass. This is where a single parent of the child might be terminally ill and wants to ensure that following their death, someone they know, and trust, will look after the child’s best interests.
The need for a guardian in this situation occurs when possibly the child’s other parent has died, is untraceable, or is simply not capable of looking after them. The latter could be as a result of mental illness or that they are in prison, to cite just two examples.
The appointment of a legal guardian is a significant decision and a very important choice. It should entail parents of the child creating a list of those they believe could provide for the child not just financially, but with regards to their emotional, cultural, religious, and moral education and well-being.
Once you decide on those who would be suitable you should discuss this with each of them to establish if they would be prepared to become the child’s legal guardian in the event of anything happening to you. These conversations should hopefully allow you to select the individual who is most suitable.
One important point to consider is what happens if a parent who is divorced dies having made a will nominating a legal guardian for their child. If the child’s other parent is still alive they do not automatically have the right to become the child’s guardian, nor in fact does the person named as guardian.
In these cases, if both parties claim that the child should become under their guardianship, or indeed any other party such as a grandparent or older sibling, the court will consider all points, and then decide based on what it believes to be in the best interests of the child.