Changing Guardianship

If the testator has any child who is a minor or is likely to have children in the future, the question of guardianship should be considered.

Typically people would want their close relatives to act as guardians.  You could choose a single relative, multiple relatives, some relatives as reserve guardians, you can even have one set of relatives raising your kids whilst they are toddlers and as they get older another set of relatives takes over during the older years.  Within Wales & England the way to make what you want to happen more definite is by drawing up a Last Will and Testament.  Your children may prefer to live with different relatives in which case you could arrange for them to have different guardians in accordance with their desires.

When writing a Last Will and Testament thought needs to be given to how and when a guardian is to act.  For instance, the testamentary guardian appointed could take up their role following the death of both parents or could be appointed to act after the death of only one of them.  In the first instance it is pretty obvious that a guardian would need to take action yet in the second instance it is a judgement call as to whether the surviving spouse is going to require the additional help in raising and looking after the kid/s.  In this latter situation the testamentary guardian would be like a second parent and act jointly with the surviving parent.  In the former circumstance it is best that both parents agree on the guardian(s) who will act after they are both deceased.  Unfortunately if this is not the case then a possible conflict, legal or otherwise, may ensue between the alternatively selected guardians.

Perhaps you have written a Last Will and Testament and need to amend it to create a change to guardianship coverage or to add guardians where there are not any appointed.  You can do this by re-writing your Last Will and Testament or by the use of a codicil which holds the same legal weight under the English and Welsh law.

Perhaps you decide at some point to remove a would-be guardian from your Last Will and Testament then let them know of your decision.  It would be wrong for them to discover your choice upon your demise.  It obviously makes sense first that any replacement guardian is in acceptance of being the primary appointed guardian instead before removing the original person or persons.  Telling somebody you have changed your mind about them being the guardian could possibly be upsetting. Nobody would appreciate you telling them you made a mistake picking them in the first place and that you are re-selecting someone you think is a better choice than them.  This is really going to make letting them know very awkward.  This is why you should not be hasty in selecting a guardian; choose carefully and correctly in the first place.  This way any future change required would most likely have a proper legitimate reason and that is going to make your decision far easier for the would-be guardian to understand and respect.

When the time comes for your appointed guardian to act they may no longer have the same circumstances in their life as they did when they considered and accepted the potential role.  Their physical or mental health may have deteriorated, their home life has become unstable, their present responsibilities may already be at their limit; they may have died or simply have got cold feet.  Anything could have happened to causing them to be unable to act as the guardian.  In this case it is back to square one with no guardian for your child/children.  To negate this happening, it is possible to allocate substitute guardians within your Welsh and English Last Will and Testament.

After you have selected a primary guardian or guardians you can also appoint a substitute guardian or guardians.  You can have substitutes to the substitutes, so the guardians are on standby in a tiered structure.  It makes sense to have this to create a proper safety net for your kids, generally life is forever changing for all of us and anything could happen to change the circumstances of any of the selected guardians so the safety net approach prepares for the unknown.

You take your time to consider carefully a chosen guardian.  That guardian may not necessarily have the same views and ideals as yourself; thus the upbringing of your child might not be in alignment with your wishes and desires.  You are not legally able to enforce upon them that they do their parenting in the same way as you; however there is nothing to stop you writing a letter to be held with your Last Will and Testament which outlines your main hopes, desires and wishes for your child.  Your chosen guardian will then be better aware of your aspirations for your child and hopefully this will assist them in fulfilling these requests. 

After you’ve arranged your Last Will and Testament and arranged guardians for your youngsters the time may come when your children turn into adults legally at this point it will obviously be time to change your Last Will and Testament to remove the guardians and most likely re-address other factors too.  With them being adults their needs will be far different to when they were toddlers and you would need to alter your Last Will and Testament so that these new needs could be met, be it funds to meet higher education costs, a wedding or a start on the property ladder; whatever it is you can allow something for it within your Last Will and Testament on the basis that you may not be here to help them when the time comes.

SEE ALSO:

Appointing An Executor.
Rules Surrounding Guardianship
Selecting Your Guardian
Automatic Guardianship
Trusts
Appointing A Guardian
Parental Responsibility
Changing Guardianship
Money For Child And Guardian

 

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