When most people make a will their main concern is about where their assets will go. But what will happen to your children?

Making a will doesn't only have to be about passing on your assets: it's a statement of how you'd like your affairs to continue. If you have parental responsibility for a child aged 18 and under, you must consider who should look after them in your absence. This involves appointing guardians in your will.

This issue is considered in the BBC2 programme You can't take it with you: Guardianship, broadcast at 9pm on Friday 4 February.

What happens if I don't appoint guardians?

If your children are left orphaned, and you've not made a will appointing a guardian, the courts will take responsibility for your children until a guardian is found. The court will try to find the best guardian, but may not choose the person you'd have preferred to take care of your children.

Although the courts will do their best to find a family member to look after your child, until a guardian is appointed your children may be placed in care if there's no one available to look after them. The process can take a huge toll on all your family, especially on your children, as the search for their guardian continues. 

There are no guarantees that your children will stay together in the same family.

How can I protect my children?

You should safeguard your children from this uncertainty by nominating guardians in your will.  Appointing a guardian stops arguments between opposing sides of the family, thus avoiding a tug-of-war.

Only a parent with 'parental responsibility' for a child can appoint a guardian for that child.  Note that a child's natural parents and those with 'parental responsibility' are not necessarily the same. For more details about the difference, you can check this explanation at DirectGov.

The guardianship clause in your will would only come into effect on the death of all of those with parental responsibility for the child. The guardian will be able to make decisions about your child's day-to-day care, their upbringing, schooling and health.

If you're separated or divorced, your wishes can be overridden by the surviving parent. The appointment of a guardian in your will is an expression of wish and can be open to challenge, but making the appointment can, at the very least, give guidance to the courts and social services as to your wishes and feelings on the upbringing of your children.

Making an appointment of a guardian in your will has the added benefit that financial arrangements can also be set out. Many of our clients even go a stage further and leave a Letter of Wishes with their will to set out the reasons behind their nomination. Not only can this help your nominated guardian bring up your children in the manner you would wish, but it can be of further help should anyone seek to challenge your wishes in court.

Who should I choose?

Taking on the task of raising someone's children can be an enormous responsibility and you should therefore discuss this with your chosen guardian to make sure they are happy to take on this responsibility. You can choose just one person to act as guardian, but many people choose two, usually a couple. We've helped many clients make what is often a very difficult choice as they prepare their wills.

In fact, we've been advising our clients, making their wills, and administering their estates since 1845. Through helping generations of clients we have gained a wealth of experience: we know what works, and have seen what hasn't, in a huge variety of family circumstances. 

Access Legal from Shoosmiths can guide you through all the options in a way which is objective, practical, and right for you. No matter how tricky your situation feels, we'll be very pleased to offer our best help.

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