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While many choose a godparent for their child, only a very small number of people appoint a guardian. A legal guardian is the person you would want to raise your child if you were not there to do so yourself, making it a pivotal thing to do early on in case the worst happens.
Although thinking about death can be uncomfortable, if both parents die while their child is under 18, and there is no legal guardian, the courts may appoint someone on their behalf.
Legal service, Frisk, offers a family risk report and if you’re a parent, one of the first points it will ask you is if you have a will and whether you have specified a legal guardian for your child.
A common misunderstanding is that a godparent has a legal obligation to look after your child should you die, but this is not actually the case.
There is no obligation for a godparent to become a child’s legal guardian should the child’s parents die whilst they are a minor, however it is fairly common for them to be asked to take on that role.
Choosing who the right person is to become your child’s guardian is a big decision but ultimately, your decision is likely going to be better than letting a court decide.
Courts do not have a prioritised order when it comes to selecting a guardian (such as grandparents first), making it all the more important to select someone when you are still alive.
In extreme cases if there is no guardian appointed and there is no one willing to take on your child’s care that the court feel can do the job, then your children will be placed into local authority care.
This issue is heavily linked to parent responsibility rights, as unmarried fathers must ensure they have it over their children – if they do not and the mother does not appoint them as guardian of their child, the father will have to apply to court for an order to become the legal guardian.
Martin Holdsworth, founder and director of IDR Law and Frisk, said: “My advice is always to remove any doubt about who you would choose to be the legal guardian of your children in the event of your death.
“The best way to do this is firstly to decide on who you believe will come closest to bringing up your child in the way you would wish. Then speak with them to make sure that they are agreeable to taking on that obligation and role.
“Finally make sure that their appointment is detailed in a valid will – bear in mind that you should also be making sure that your will provides financial support to your legal guardians to care for your child.
“If you don’t do this in life, then in death you will be completely in the hands of the court to decide who the legal guardians should be.”
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