A recent study found that 70% of UK parents have not named a legal guardian to care for their children in the event of their deaths. Hardly surprising. We know from Psychology that contemplating our own death is fundamentally challenging (Becker, 1973) and that we tend to underestimate personal risks and the likelihood of misfortune (Weinstein, 1980).

Though the chances a parent with dependent age children will die is relatively small (1 in 1000 chance) the implications are HUGE.

You know that life does have a habit of throwing the unexpected your way. If you are going through or have been through a divorce, there are some additional considerations your kids will thank you for not ignoring.

What is guardianship provision?

Guardianship provision means naming a legal guardian for your children in the event of your death. This person becomes responsible for your children’s welfare, including their upbringing, education, and overall care.

If no guardian is legally appointed, the courts decide who takes on this role, which may not align with your wishes. Appointing a guardian provides clarity and ensures your children are cared for by someone you trust.

When completed, your guardianship provision is included as part of your Will.

Three Key Considerations

1) Are you confident in your ex-spouse?

Why it’s important:

• If the surviving parent is the child’s mother OR a man who was either married to the mother at the time of the child’s birth or were named on the birth certificate as the father, they will normally be deemed to have ‘parental responsibility’. In the event of your death, they would typically become the default care giver unless deemed ‘unfit’ by a court.

• If you have doubts about your ex-spouse’s willingness OR capability to perform this function, you must take steps to address this legally. If they refuse responsibility or are incapable of taking it, the Court will decide who will look after your children. The Court will always act in your child’s best interests but you can take steps to ensure they consider your perspective.

Actions:

• If you have concerns, then appoint an alternative or co-guardian. Document your concerns fully and clearly in an additional “Letter of Wishes” to accompany your Will. This enables the court to consider your chosen guardian over your ex-spouse in specific scenarios. Seek legal advice if you suspect your ex might contest this or may be deemed ‘unfit’ by a court.

2. Do you have the right guardian?

Why it’s important:

• Your chosen guardian should align with your values and be capable of providing stable care for your children. This is especially critical if your relationship with your ex-spouse is contentious, or if you anticipate a situation where your children may need additional support.

• If you already have Guardianship Provision, has your separation impacted the suitability of chosen guardians? This might arise if, for example, they were members of your ex’s family. Divorce does not automatically invalidate Guardianship provision made while married so if you wish to make changes you must do so proactively.

Actions:

• This is a big responsibility for someone to take. Discuss the role with your chosen guardian before naming them in your Will. Consider their relationship with your children, lifestyle, financial stability, and their ability to take on the responsibility.

• Draw up a new will, including your new Guardianship provision. This automatically revokes your previous Will so any previous guardianship provision will be superseded.

3. Have you planned sufficient financial support?

Why it’s important:

• Guardianship provision often requires financial planning to ensure your children’s needs are met. This is particularly important if your chosen guardian isn’t in a position to bear the financial burden of raising your children.

Actions:

• Take out a life insurance policy, held in trust, to provide financial security for your children. Clearly outline how funds should be managed to support the guardian in caring for your children in a ‘letter of wishes’ included with your will.

• Consider engaging a financial planner to help work out precisely how much cover you need and which type of policy to take. What future do you want for your children and how much will that cost? Have you considered schooling, general standard of living, travel, university, home ownership. Cash flow planning can help work backwards from desired outcomes to establish the right amount of cover.

5 Steps to Setting Up Guardianship Provision

Step 1: Choose a Trusted Guardian

Start by identifying someone who shares your values and whom you trust to care for your children. Consider their relationship with your children, their ability to meet the responsibilities, and whether they’re willing to take on the role.

Step 2: Discuss Your Decision

Have an open conversation with your chosen guardian to ensure they’re comfortable with this responsibility. Explain your reasons, provide clarity on what the role entails and what your expectations would be. Include discussion around the financial implications so that you can ensure adequate financial provision is made.

Step 3: Document Your Wishes in Your Will

Include your chosen guardian in your Will. This is the legally recognised way to formalise your decision. Work with a solicitor to ensure the language is clear and reflects your wishes.

Step 4: Provide Context for the Court (if needed)

If you have concerns about your ex-spouse’s suitability, include a letter of wishes alongside your Will. This document outlines your reasoning and provides the court with context, adding weight to your choice of guardian.

Step 5: Keep the Provision Up to Date

Review your guardianship provision and your planned financial support regularly, especially after further major life changes such as remarriage. Ensure your choice of guardian remains suitable and reflects your current circumstances.

Final thoughts

Setting up guardianship provision is a sensitive and complex process, especially during or after divorce.

A good solicitor, along with the right financial planning support, will help parents navigate this critical step with clarity and care to ensure you and your children are fully safeguarded.

References:

Solicitors for the Elderly. (n.d.). Guardianship clauses in Wills: Why 70% of UK parents haven’t made a provision for their children. Available at: https://www.moorebarlow.com/blog/guardianship-clauses-in-wills [Accessed 14 Nov. 2024].

Weinstein, N. D. (1980). Unrealistic optimism about future life events.Journal of Personality and Social Psychology.

Becker, E. (1973). The Denial of Death. New York: Free Press