Thread Rating:
  • 0 Vote(s) - 0 Average
  • 1
  • 2
  • 3
  • 4
  • 5
Death - like hell is "lives with" a label
#1
So this is a letter from solicitor regarding PR after death.


The law surrounding guardians is quite complex.  Guardianship clauses in wills usually only take effect if there is no living person with PR.  However, the position is different if there is a ‘lives with’ order in place.  Below is a summary if there is a ‘lives with’ order in your ex's favour:
 
·       Both of you have parental responsibility (PR) for child.  No one else can acquire PR without both your consent and/or a court order whilst you are both alive.
 
·       If Ex died, you would continue  to have PR.  If Ex had appointed a guardian in her will, the appointment would take effect on her death and that person would also have PR for Child.  You would need to work together regarding the arrangements for child.  If you and the guardian could not agree, either of you could apply to the Family court for assistance.
 
·       If Ex died and had not appointed a guardian, only you would have PR for X.
 
·       If you died, Ex would continue to have PR.  If you had appointed a guardian in your will, this appointment would not take effect.




Basically what this means for me is that if ex dies Ill have to do all this again with her twin sister.
Reply
#2
This is incorrect.

If a person with PR dies, the next person with parental responsibility takes responsibility and care for the child. A written will stating guardianship for someone without PR doesn’t make any difference. A person would have to apply for a residence order or parental responsibility (usually both) in order to take guardianship of the child. Barring any safeguarding issues it is extremely unlikely this would be granted regardless of what the deceased has stated in their will.
Reply
#3
(04-23-2018, 02:39 PM)strider Wrote: This is incorrect.

If a person with PR dies, the next person with parental responsibility takes responsibility and care for the child. A written will stating guardianship for someone without PR doesn’t make any difference. A person would have to apply for a residence order or parental responsibility (usually both) in order to take guardianship of the child. Barring any safeguarding issues it is extremely unlikely this would be granted regardless of what the deceased has stated in their will.

FFS
Thats another £112 of solicitors fees waisted.

I have to say, it doesnt seem quite right that someone could just nominate anyone to be a parent. I cant get my head round this, people seem to be 50/50 on this one.

Found this on a website, are you sure strider? remember we are talking about if the residence is with mother only. Then she can appoint guardian.

Guardianship: if you have separated or divorced, it may be particularly important for you to appoint a guardian in the event of your death. Both parents should ensure that there is someone to take care of their children in their place. Usually, the appointment of a guardian won’t take effect where there is a surviving parent, but where following divorce proceedings a residence order has been made in favour of the parent appointing the guardian, the appointment will take effect on that parent's death.
Reply
#4
I know this from experience. It is commonplace for resident parents to put a guardian in their will (probably as a final up yours to the non-resident but let’s not be cynical here...), and while this is considered, it is extremely unlikely that a child will be placed in the care of the guardian when a person with PR is still alive. It is usually only in cases of safeguarding concerns, inability to parent, or not wanting to be the main carer that the guardian will be appointed. And even then they have to apply to court. Then a social worker will be brought in to assess their suitability and pass on their findings to a judge. I’d be confident in stating that it’s almost unheard of otherwise.

If a parent with a ‘lives with’ CAO dies, the order becomes void and the child is placed with the next person with PR - mother or father usually. It would be incredibly harsh and brutal but the parent with PR could literally remove the child from the care of the resident parent’s family on the day they died.

A guardianship doesn’t immediately come into effect simply because it was written in a will. What if the person was totally unsuitable? It needs to be ordered by court with an extensive report of suitability carried out by social services. An application would need to be made by the guardian - which would take months - and the child would be placed with dad (or mother) as next with parental responsibility.

If you’re worried then by all means fight for your ‘lives with’ status and you’re likely to get it depending on what contact you’re awarded. But I wouldn’t be panicking about guardianship at the minute.
Reply
#5
I think you are right Strider about a final up yours! Ex appointed some ex boyfriend of hers as a guardian years ago! And has probably nominated her husband now.

I saw a programme about this with a mediator discussing this issue. The ex hated the Father with a vengeance - had a husband and another child and said if she died she wanted their daughter to remain with her husband and their child as they were siblings. Mediator pointed out that as the other parent, if she died and the applied for residency he would get it regardless of what she wanted. Mediator wanted the Father to agree in advance that daughter could stay with ex's family, which he agreed to reluctantly on film. But I bet he changed his mind afterwards and I don't think the mediator should have put him in that position.

I think the difference with having lives with is you would automatically have "residency" whereas with PR you would have to apply for it - but would get it. But it needs checking out.

One bonus I have found with the "lives with" is it lasts until child is 18, rather than 16. It would only be until 16 if it was an order for spends time with. The argument my barrister made was - it would be very difficult for the ex to bring up any issues in future if she's agreed to lives with as a consent order, and also harder for her to apply to vary (possibly!).

Twin sister! That is the second pair of evil twins I've heard about this week lol.
Reply
#6
It’s certainly a very grey area and one that’s rarely discussed simply because it’s such a rare thing.

Naive is right in a way with his information: if a guardian is appointed in a will with a CAO in place then technically PR is passed to the guardian in the event of both mother/father dying. Residency, however, isn’t and they’d have to apply via court for PR and for the child to live with them. Social services would become involved to do a welfare check and report, a judge would make an order etc etc. In the case of a guardian applying for PR, the living parent with PR would, almost every time, be awarded residency and could still remove the child from the care of the absent parent’s family/guardian.

It’s definitely a complex area of the law and rarely looked at as it’s so uncommon. My advice would be not to worry about guardians in a will but to have additional wording added to the court order along the lines of, ‘in the event of XXX passing, YYY will be primary carer and resident parent of ZZZ’.

Like I say, barring any unique circumstances, it’s almost unheard of for the natural parent not to be awarded this.
Reply
#7
(04-24-2018, 04:10 AM)strider Wrote: It’s certainly a very grey area and one that’s rarely discussed simply because it’s such a rare thing.

Naive is right in a way with his information: if a guardian is appointed in a will with a CAO in place then technically PR is passed to the guardian in the event of mother/father dying. Residency, however, isn’t and they’d have to apply via court. Social services would become involved to do a welfare check and report, a judge would make an order etc etc. But this guardianship PR is rarely enforced and would be removed almost immediately if the living parent with PR disputed it (barring any safeguarding concerns etc).

The living parent with PR would, almost every time, be awarded residency and could still remove the child from the care of the absent parent’s family/guardian.

It’s definitely a complex area of the law and rarely looked at as it’s so uncommon. My advice would be not to worry about guardians in a will but to have additional wording added to the court order along the lines of, ‘in the event of XXX passing, YYY will be primary carer and resident parent of ZZZ’.

Like I say, barring any unique circumstances, it’s almost unheard of for the natural parent not to be awarded this.

Sounds like nothing to worry about really Naive.  Strider this brings up new queries for me.  Regarding an order where the children live with both parents.  I was assuming that if the other parent died, the children still live with you, without needing to go to court to ask for a lives with order.  Or would it be the case that if the ex died the order becomes null and void and you still have to go to court for a residency order?  Either way sounds like you'd get it.

The Guardian aspect concerns me though. If my ex died her husband would have PR if he is appointed as a guardian.  But if son lives with both parents, can I also appoint a guardian?

Naive not sure how old your kids are but I guess most parents don't die before the kids are 18 :-) So it does sound like a rare thing although you want to know what's what in that case.
Reply
#8
Anyone can appoint a guardian in their will. But they only come into play if both parents with PR are deceased. Even then they’d have to apply to court for it and a judge would decide where the child would live in their best interests.

In Naive’s case, if he was the sole parent with PR and with a CAO in place, a court would make a decision on where’s best for the child to live. And like I say, it’s almost unheard of for a natural parent with no concerns etc to not be awarded residency.

Naive, you won’t have to go through this again with your ex’s family should something like this happen. Just be the best dad you can be and you’re grand.
Reply
#9
Yeah cheers guys, I'll admit this, some of the problems Im in are my own doing. I knew what she was doing wasnt right but in picking my battles, I didnt challenge her much about decisions regarding my daughter. Therefore Im not making the same mistake again, I want every single base covered off. Id never survive a court battle with the "older" more aggressive twin, she's already had two very messy divorces and a custody battle.

Anyway, Charlie, if its a lives with both order it cancels everything out. Both you and your ex cant give PR to anyone in the event of one of you dying and the other surviving. The only thing you can do is nominate one person each [or the same person] to have PR if you both die. Basically, with a joint residency then sole PR goes to you or your ex only.

Of course if one parent with PR remains they can then give PR to whoever they wish, if they wanted to.
Reply
#10
Naive, just to reassure you, nobody can obtain PR without a court order. PR can’t be ‘given’ to another by a parent with PR.

Don’t be worrying mate.
Reply


Possibly Related Threads...
Thread Author Replies Views Last Post
  50/50 but not lives with? Naive 3 4,288 01-22-2019, 02:13 PM
Last Post: Charlie7000
  Flapping like hell, need some advice tedleyheaven 5 6,602 11-22-2018, 01:07 AM
Last Post: Charlie7000



Users browsing this thread: 1 Guest(s)