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Who Will Take Care Of My Children When I'm Gone?

View profile for Joanne Tillotson
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Watching our children grow into adults and them flying the nest is something that we take for granted. For others, the heart-breaking and unthinkable happens, dying when your children are young or infants. Although most will not have to deal with this heart wrenching reality unfortunately life can be cruel and unexpected.

If you have a young family, it is worth thinking about who will care for your children if the unthinkable happens.

In straightforward cases, such as a married couple, both being the biological parents of the child/children, making a simple Will selecting guardians is  fairly easy. In most cases there are suitable grandparents or aunts/uncles.

However, the appointment of guardians in more complex family arrangements is not as simple. In these modern times families are not necessarily the traditional husband and wife set up with each parent being the biological parent of the children in the family home. Your partner may have ‘brought up’ your children as their own for many years. This however, does not give them automatic legal right to be their guardian.

The appointment of guardian comes down to who has parental responsibility of the child.

The biological mother of a child automatically has parental responsibility (unless taken away by a court ruling, or given up voluntarily).  A child’s father automatically has parental responsibility if he is married to the mother when the child is conceived, or marries her at any point afterwards. An unmarried father has parental responsibility if he's named on the child's birth certificate from 1st December 2003 (again unless this has been taken away by a court ruling, or he has voluntarily given up his right).

In a case where a parent may have not had much contact with their child/children for a long period, or even no contact at all, they still have parental responsibility for that child and therefore are their legal guardian. This can seem unfair if the child/children in question have been raised by a step parent or perhaps even a grandparent for a long period of time. The law deems that they do not have parental responsibility. It should also be noted that the marriage of the biological parent and step parent does not give rise to parental responsibility either. However it can be acquired by a step parent by an order of the court in some cases.

If you are unsure whether or not you or your partner has parental responsibility and you are concerned who would act as guardian of your infant children on your death then you must seek legal advice. Making a Will is crucial if you have young family and  our expert  Wills and Probate Team can guide and support you during this process.