Making Sure Your Child is Cared For In The Event of Your Death
- AuthorJCP Solicitors
"I’m separated from my son’s mother, who has severe personal issues. If I were to pass away unexpectedly, she would be unsuitable to care for him. How can I ensure he is cared for appropriately if this happens?"
Having a Will in place makes it simpler for your family to sort out your affairs when you die. As well as making financial provisions for loved ones, your Will can be used to appoint a legal Guardian to care for your child in this scenario.
If both parents die without a Will in place and your son is under 18, the state will appoint a Guardian. You can appoint a Guardian of your choice in your Will even if your son’s mother is still alive but if your ex has parental responsibility, this would override your Will. A Guardian will make important decisions about your child’s medical treatment and education, and act as caregiver until he is an adult.
You should also make financial provisions to support your son, so it is important to have a Will professionally drafted so money from your estate can be released before he is 18, for educational or medical purposes, for example.
There are some circumstances under which the Guardian you appoint acquires Parental Responsibility if you were to die, but these are limited to:
- Your son has no surviving parent with Parental Responsibility
- There was a Child Arrangement Order (CAO) in place to say the child lives with you, or you were the only or last surviving Special Guardian. In these circumstances, his mother and the Guardian will share parental responsibility. If there’s no agreement about where your son lives between his mother and the Guardian, either can make an application to the Court. His mother could also apply to terminate the role of the Guardian
If you died without a CAO in place saying your son lives with you, the appointment of the Guardian wouldn’t take effect until his mother dies. The Guardian can make an application to the Court but may need the Court’s permission to apply. It is sensible to obtain a CAO, to appoint a Guardian in your Will, and to write a statement with your Will to explain why you feel your son should live with the Guardian, not his mother. As you can see, this is a complex area and it is vital to seek tailored legal advice.
The question posed is based upon a hypothetical situation.