One of the most frequent reasons quoted for not making a Will
is “I don't know who would look after the children if I'm not here”.
For parents of children under the age of 16, this can be quite a dilemma. Who will be the person responsible for looking after your children if you die? Should it be your parents are they still fit and healthy? Or should it be your siblings - do you have a good relationship with them? Or would you prefer that a trusted friend, who lives in the same area, is the best person to provide stability and continuity for your children?
There are so many things to consider and whilst Wills are often aimed at the financial aspects of your estate they can and should be used as a vehicle for confirming who would have legal responsibility for your children until they reached the age of 16. Young people in Scotland have their parents as their guardians until they reached the age of 16. They do have limited power to do things before this age but generally speaking their mum or their dad are the people who make decisions for them until they reach this age.
If you don’t appoint a guardian in the event of your death, then someone would have to apply to Court to be appointed as guardian. This can be time-consuming and expensive and you have no control over who makes the application.
In Scots law you don't have to make such a statement of guardianship within a will but it must be in writing and therefore will is frequently seen as a logical place for such a statement to be contained - after all the guardianship would only take effect if the parent dies.
In many cases, the Will will only appoint a guardian in the event of both parents dying, perhaps because of a common calamity such as a car accident. However, it is possible to appoint a guardian on the death of one parent. The guardian would then act along with the surviving parent for the benefit of the child. This is often done for couples who do not live together and perhaps do not enjoy a good relationship with each other. Each parent is therefore ensuring that there is someone of their choice appointed who can speak for their child.
It is not always an easy role to take on. It involves physically looking after a child and being responsible for them in matters of health, education and so on. It can be quite easy to agree to being appointed as guardian without truly understanding the nature and extent of the role, or perhaps taking it on on the basis that “well, it will never happen anyway”. Open and frank discussions are encouraged before such appointments are made in a Will. The input of a qualified solicitor can be invaluable in facilitating these discussions and ensuring that a child’s future is assured.
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