The Children Act 1989 defines parental responsibility as all the "rights, duties, powers and responsibility which a parent of a child has in relation to the child and his or her property". It includes, matters such as:
- Poviding the child with a home
- Protecting and maintaining the child
- Being responsible for the child's discipline
- Dealing with the education of the child
- Influencing the child's religion
- Being responsible for the child's health and welfare
- Looking after the child's finances and property
However, all of these aspects reflect what happens whilst you are alive and are able to care for the child for whom you are responsible. Unpleasant as it may seem, have you stopped to wonder what would happen to your child if you were no longer able to care for and look after them - either because you were too ill or infirm to do so or in the event of your death?
Having a Valid and Current Will
One of the most important steps you can take is making a Will in which you can make provision for any children for whom you are responsible.
If you die without making a Will then you are said to have died intestate and the law will make certain assumptions as to how your estate is to be dealt with. Those assumptions may not accord with your wishes. Under the rules of intestacy there is an order of priority for those who will benefit. This depends upon whether or not you are married, whether you have children and whether your parents or other relatives are still living. In addition, the amount which each person receives will be determined by how much your estate is worth.
If, therefore, you are married or in a civil partnership but want to leave the bulk of your estate to your children you will find that under the laws of intestacy your wishes will be thwarted. The law provides that your spouse/civil partner will receive your personal items (e.g. household items, jewellery etc.), the first £250,000 of your estate and a life interest in half of the remainder of the estate. Your children, on the other hand, will only get half of the remainder of the estate outright (when they reach 18 or marrying before that) and the other half of the remainder after the death of your spouse/civil partner.
If your main asset is the matrimonial home and you do not have much in the way of non-jointly owned property, then your children may not inherit anything. The chances are that if you and your spouse/civil partner are separated, then this will not be what you would want to happen.
Similar problems can occur if you have step children. Even if you are married to the parent of a child, or in a registered civil partnership, unless you have formally adopted them your step children will not benefit under the intestacy. Instead, either your estate will be divided between your spouse/civil partner and any of your own children or, if you have no children of your own, then personal items, the first £450,000 and half of any excess over £450,000 will go to your spouse/civil partner outright but the remainder of will go either to your parents or siblings.
Remarriage
A further complication can arise if you have remarried. Unless you make a will expressly in contemplation of marriage then, as soon as you remarry any Will in force at that date will cease to have effect and, unless you remake the Will, you will be deemed to have died intestate. This means that any children by a former marriage may, depending upon the size of your estate, fail to benefit at all.
This will particularly be the case if your main asset is the matrimonial home and that is owned jointly with your new spouse/partner because the value will not form part of your estate and it is only any other non-joint property that will be taken into account when calculating who gets what upon the intestacy. Making or changing a Will need not be difficult or expensive. Using Your-Will.com from Richard Nelson LLP you can make an online Will for as little as £85 (including VAT) and what is more, you can complete it from the comfort of your own home. They will check through the questions you have provided and will can either be posted or downloaded for you to sign.
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Another benefit of making a Will is that you can use it to appoint guardians of your children in the event that anything should happen to you before they reach the age of 18. Whilst there is no need for a married couple to appoint each other to be the guardians of their own children, they already have that responsibility, you might want to appoint a guardian if:
- You are a single parent
- You are cohabiting and the children are not the children of your partner
- You want to make provision for the situation should you and your spouse/partner both die
Bear in mind that if you don't appoint a guardian and your children are left without a parent before they reach the age of 18, then the courts will appoint guardians. However, they will not necessarily be the people whom you would have chosen and there may be a period, pending the appointment, when your children have to be taken into care. By making an appointment in your Will you can take steps to help ensure that the people whom you choose and, possibly just as importantly whom your children would choose, are appointed as guardians.
The role of a guardian is to be responsible for your children in the event that they are orphaned before reaching the age of 18 and to attend to their day to day care, welfare, upbringing and education.
The guardian can also be appointed to act as the trustee for your children and to be responsible for their finances until they reach the age of 18. For example, you may have been able to leave your children a substantial sum under your Will to pay for their upbringing and education which will be held on trust for them until they reach the age of 18. If you do make a guardian a trustee also, then it would be wise to appoint another, independent trustee, for example a solicitor, to prevent problems from arising if there is a disagreement between the child and the guardian as to what the child needs and also to guard against fraud or misappropriation of the funds.
Do bear in mind, however, that if you do not currently have parental responsibility for a child (for example you live with or are married to, or in a civil partnership with, the child's parent but have not adopted or taken on parental responsibility) you cannot appoint a person to be a guardian and, if you wish to continue to be responsible for the child, then you will need to be appointed as the child's guardian in your partner's Will.
Enduring power of attorney
Problems may also arise for your children in the event that you are no longer able to make decisions yourself. This may arise as the result of an illness or from an accident. The best way to make provision is to make what is called a lasting power of attorney which enables you to appoint another person or persons (an attorney) to make decisions on your behalf in the event that you are no longer able to do so because, for example, you have lost the mental capacity to do so.
If you do not have a Lasting Power of Attorney, then the only other way in which your financial affairs can be looked after is if someone close to you applies to the Court of Protection ? a process which can take a significant amount of time and which could potentially costs many hundreds of pounds to pursue. The delays alone could seriously damage how you are looked after and how your financial affairs are managed and you may even find that your affairs are being dealt with by a court official.
It is for these reasons that it is necessary to take steps to ensure that, in the event that this occurs there is someone whom you trust who can take over and manage your finances, wellbeing and other issues on your behalf. A Lasting Power of Attorney is the means by which that can be achieved and allows you to plan in advance:
- What decisions you want making should you lose capacity to make them yourself
- By whom and how those decisions are to be made
Provided that they are aged 18 or over and not a bankrupt at the time the form is signed, you can choose almost anyone to act as your attorney.
If you wish, you can appoint more than one person to act at the same time or you can appoint replacement attorneys who will act only if the first appointment does not happen. You can even choose whether multiple attorneys should act together or together and independently and can even specify that they must act together for some decisions but independently for others.
As with our online Will service, you can make a lasting power of attorney online at our Your-will.com web site. This is a straightforward process and can be done from home. Once you have completed the appropriate questionnaire we will check through the documentation and either post the document to you for you to sign or you can download it through the system, print it off yourself and then sign it.
About the Author
This was a guest blog written by Duncan Finlyson, a partner at the specialist will solicitors, Your-Will.com, which is part of Richard Nelson LLP. Using their online software you simply answer a series of questions and leave the rest to them.
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