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:
To formally document your wishes regarding guardianship and care arrangements, you may find it helpful to use our free Letter Builder.
- 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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Try our Father's Rights Checker free, here on this site →Appointing a guardian
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.
Your situation may be slightly different. ask a question below ↓ and our editorial team will reply with our advice.
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.
What I'm concerned about is if I died whilst my children are still of school age that my ex will upheave them and move two hours away to where his girlfriend lives that they do not know. My son is autistic and can not handle change. The house will be left to my children.
Is there any way I can be sure that my ex does not pull my children away from their current lives, school, friends etc and completely upheave their lives. My son could not deal with this change and he is way closer to me than his dad so he would be suffering enough as it is. I just cant bear the thought of them being torn from everything they know to somewhere they know no one and not even his partner! Obviously I would be happy for him to move into what would be the childrens home to take care of them. Please could someone tell me if I can do anything to ensure my wishes are followed
I am wanted to create a will so if I die my child will stay with my husband who is not is biological dad, his biological dad has no contact with my son and is a danger to him.
How do i go about doing this?
I was wondering if anyone knows if the passport details of your child/ former husband are needed and will remain valid( as the passport expires) when you make a will. The child lives in another EUcountry with his father
for the moment.
Or are the names sufficient to make a proper will?
thank you
Could i name him to keep our children in a WILL and also could appoint a guardian, should anything happen to us both. Thank you.
Has she broken her word I.e. As broken a contract his son is only sixteen
She then entered a new relationship and things actually turned out better for me initially as I then started having them from Thursday to the following Tuesday most weeks, for a period of around a year ( flushes of a new relationship etc ) she even lied regarding having to work and for me to have the children bank holidays, though this transpired she was out at BBQs !
Though again I was more than happy to see them.
Then it all changed .. She moved house and schools without telling me and then stopped answering calls and moved into a house with no gardens and fed the children a diet of gamestation TV and takeaways.
She has served a non molestation order on me.. Complete fabrication and something I can prove through phone records, witness and character references.
And also a child protection order to withhold the boys from me .. Again on fabricated lies.
Absolutely incredulous that whilst I've done nothing wrong the outcome is that I do not get to see my children.
To top it off her new partner has threatened me with violence twice ( each logged with the constabulary and actioned)
Caffcas has been in touch . done the interview and whilst she asked me if I have representation ( I haven't ) I did reply that my defence was to tell the truth and prove that my ex partner and her new chap are the ones with a tenuous grip on the facts.
And if there is justice in this land then right and truth will prevail...
What a sad world we live in to see a 'Mum' ( no true 'Mum' would use their children as a pawn to enact some vengeful vexatious rhetoric whereby the victim is often the children in all this, shameful behaviour )
As an adult I understand what she is doing, but what she is doing to my children I will never forgive her or call her a positive attribute to myboys welfare.
Sad.
Paternal parental responsibility can be acquired by making a parental responsibility agreement with the mother, obtaining a parental responsibility order from the court, obtaining a residence order from the court; or becoming the child’s guardian on the mother’s death. You could also arrange this through mediation and this would be then verified by the courts. The matter can also be dealt with in your ex's will. If your ex agrees to appoint you as a guardian then her last will and testament should reflect this. She must include in as much detail as she can, the reasons why she wishes you to take on the role of caring for your children. It is important to ensure that she clarifies your reasons for making this choice so that there can be no confusion over her mental and emotional state at the time of making her will. I hope this helps.
My question is if i die in childbirth (theres been complications) will he get the baby?
I want to leave the baby if it survives and i dont to my mother, but i dont want her to be caught in any legal battles.
I understand he has rights to see his child, but he knows nothing about children and is a very irresponsible person. He has no intention of financially supporting it. He will throw the odd bit here and there but thats it. Hes done nothing but make things worse and im so worried he could end up taking my baby away and not looking after it. Then again keep in mind i have no proof he wont look after it, hes manipulative and tells a good story.
I want to make a will now that the docs are worried ill go into early labour.but is there any point if hes going to be the big man and take my baby?
Keep in mind my mum has reared seven kids and has been with me throughout this pregnancy and he lives with his parents and contributes nothing and still ends up woth no money at the end of the month. Hes so obviously not full time dad material but i may not be around to proove that.
Grateful for any and all advice !
I have a quick question regarding appointing a guardian after a divorce. My ex-husband asked my sister to be the guardian of my 8 year old (but he hasn't even consulted me before asking!) in case he/we both die?
Is he legally allowed to appoint a guardian without my consent? Does parental responsibility not automatically fall to me if he dies? Even though we are divorced?
I don't mind his brother being guardian in case we both die but I just want to clear the above point first, thanks.
I need advice. My daughter who is 14 lived with her mum. The mum sadly died last week. She left a will saying that the grandmother should be her guardian etc and that the property is left to my daughter. How do I make sure this happens as I do not trust them with regards to money. I know nothing about probate or anything like that and don't know where to turn. I need to make sure my daughters best interests are followed. We all get on fine but I know things will change
Please anyone advise
Thanks
Does this mean I should list each order: Order for the sale of our property, An order for court costs and can I make an order for rent from the defendant because he has changed the locks and denied me access to my home for over a year?
would i still be legal guardian and children live with me.
Even if she is living with someone or remarries?
From it and not pay maintance
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