If you have children under the age of 18 then you should nominate Guardians who will take over the role of looking after your children in the event that both of their natural parents pass away.
Only a parent of the child or children has “parental responsibility” and only the mother of the child has automatic parental responsibility for her child. The father has automatic parental responsibility if he is married to the mother prior to birth. By drawing up a valid Scottish Will, the mother can give parental responsibility through the appointment of Guardianship to the birth father.
A common misconception relating to unmarried couple who have children is that the father will automatically have these rights. This is not the case and if he is not nominated as a Guardian then the Courts and therefore ultimately the State decides on the provision of who cares for your children, a decision that you and your partner may not have agreed with. There are other ways that a natural father may obtain parental responsibility and therefore obtaining the same rights and responsibilities:
- By the father marrying the mother
- By the father being named on the birth certificate which is registered after 4th May 2006
- By the father signing a Parental Responsibility Agreement with the mother
- If the mother will not agree to this, applying to the Court for a Parental Responsibility Order
There are a number of things that you should consider when you wish to appoint a Guardian(s).
- Consider carefully the implications of who you would choose, are they trustworthy? Will they have the best interests of your child(ren) at heart?
- Does your child(ren) know the proposed Guardian(s) well?
- Will they feel comfortable living with them?
- It is fairly common to nominate a brother or sister and we would advise on not including that siblings spouse or partner, your in-laws, in case of divorce or separation.
- It is also fairly common to nominate your parents. You have to consider how old they are and the real possibility that the may pre-decease before you or before your child(ren) reach the age of 18 therefore meaning your child(ren) may be uprooted again. Could they cope with looking after your child(ren) full time, either on health grounds or the energy that is required to look after young children, we all know how tiring they can be at times. It may be prudent to nominate a Guardian from your own generation.
- Think about substitute Guardians. This is in case your first choice is unwilling or unable to act at any time during the minority of the child.
- What are the financial implications for the Guardian(s)? Do they have their own finances or will your Scottish Will make provision for the minors or is some form of Guardian Insurance appropriate?
- Is it important for the child(ren) to be brought up in accordance with any religious faith and will the Guardian(s) be able to support this?
- Will it mean that your child(ren) will have to move away to a different area, go to a new school and make new friends? If your child(ren) is bereaved, it may be too much for them to be uprooted to a new place as well.
As you can see there is a lot to consider when choosing an appropriate Guardian(s) for your Child(ren). We appreciate that no two families, including extended families are the same and we all have a different social and friendship network which you would quite rightly have to consider when taking the decision for the best interests of your child(ren).