The Responsibility of Parents
There are many events in life that might prompt you to make your Will or to review an existing Will. The birth of a child is for most new parents one of the happiest and exciting times they will experience. The responsibility of parenthood should never be taken lightly and few things are more sobering than having to consider who might take on that responsibility if the parent should die before seeing their own child grow into adulthood.
The Children (Scotland) Act 1995 introduced significant changes to the appointment of Guardians for children. The appointment need not be in the form of or part of a Will – though it commonly forms its own clause in the Will – but must be in writing.
The Responsibility of Guardians
It is crucial to understand that a Guardian is a parent substitute with all the parental rights and responsibilities. A guardian may appoint a person to take his or her place as guardian, in the event of the guardian’s death. This is a departure from the previous law. A written appointment can be challenged but will take effect unless such a challenge is successful.
Scots law allows for the appointment of a guardian for young people to age 18, the responsibility for young people over the age of 16 is restricted to providing guidance. The clause may be quite prescriptive and go on to make some sort of financial provision to the guardians to the extent that they will be reimbursed for their expenses incurred as a consequence of taking up the appointment. The appointment can be extremely onerous and could mean adding to an existing property or having to move house for extra accommodation, or to be nearer school etc.
An example of a guardianship clause is:
“I appoint as Guardian to any of my children who are under the age of 16 years at the time of my death, ABC residing at XYZ; and I also specifically empower my Trustees to make such payments as they shall in their sole discretion deem fit to the said Guardian to assist him to defray the costs incurred by him in acting as such Guardian and all such payments shall be absolute but shall be deemed to be payments for the benefit, education and maintenance of such child, notwithstanding the fact that the payments may truly be in refund of out-of–pocket expenses incurred or to be incurred by my said Guardian, it being my wish that my trustees adopt a wide and liberal interpretation of these provisions.”
A Will is an important document in dealing with your estate and tax planning. The appointment of a Guardian is concerned with something much more precious and needs to be considered very carefully, both by the parent making the appointment and by the proposed Guardian. Age, health, location and the overall suitability of the guardian need to be considered.
Johnson Legal Solicitors have many years combined experience in family law and succession and are very well placed to help both parents and guardians with this most important of choices and the law that surrounds it.
For more information, contact Hazel Johnson: 0131 622 9222 / [email protected].