Legal Guardianship, Is This Possible?

Q.

My Son is fourteen years old. Sadly his Dad passed away five years ago. I now have a new partner that lives with us, all is happy, my Son and my partner get on really well.

My partner and I have discussed some kind of legal guardianship, in case of my passing whilst my son is still a child. Is there such a thing ?

A.

Legal guardianship in case a child loses both parents is a subject which should be considered by all parents. Naturally it is a very difficult topic and one that many parents would probably prefer not to address. Sensibly, because your son has already experienced the tragedy of the death of his father, this is a subject that you have already thought about. The fact that you have found a new partner who gets on well with your son is good news and he may seem like the obvious person to consider for this very important role.

You must think about exactly what being a legal guardian would involve. The most important factors are stability for your son should the unthinkable happen and choosing a person that you trust and who is prepared to take on all the long-term emotional and financial responsibilities for the child.

Before choosing a person to be a legal guardian you must be as sure as you can be that they are the right person and will be there for the child. You describe your partner as being “new”. It sounds as if he is happy to take on this responsibility but do make sure that he is the right person. There may be other people who could also act as legal guardian, for example grandparents, any brothers or sisters you may have or close, long-term friends.

To appoint a legal guardian for your son you should either:

• prepare a will in which the individual is named as your son’s guardian; or,
• prepare a document, that must be dated and signed, which states that a particular individual will become your son’s legal guardian if you die.

It would be sensible to discuss your choice of legal guardian with anyone else who may have an interest in your son’s wellbeing, such as any other family you have. Even if you prepare a will or specific legal document dealing with this issue the decision is not necessarily legally binding.

Someone who disagreed with your choice of guardian could bring a legal case to change the person who has guardianship. For this reason it is vital to discuss the decision with anyone who does have an interest in your son’s welfare to ensure that there is no disagreement if guardianship becomes necessary. If such a case was brought the court would consider what was best for the child and reach a decision about whether the person you appointed, or someone else, is the appropriate person to look after your son.