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Bad stuff- really bad stuff – can happen. A top lawyer gives her advice on how to prepare.
In the heart of holiday season you probably don’t want to think about darker topics. But a little bit of downtime might provide an opportunity to give some thought to weighty matters and get important affairs in order.
This isn’t a fun read but it’s important for working dads because if the worst were to happen to you your kids are going to miss both your financial contribution and that extra time and effort you put in to being a good father. That’s not an argument for being a rubbish dad so they don’t miss you so much! It’s an argument for taking some simple steps just in case.
Olivia Cooper, head of the Family Office at law firm Meaby & Co, explains what’s entailed:
Remember Diane Keaton in Baby Boom? In the film Diane’s character, J C Wiatt, has her life turned upside down when she ‘inherits’ Elizabeth – the baby daughter of her English relatives who have tragically died in an accident.
You may ask what has to do with working fathers, the reply would have to be a great deal.
Working dads are often so concerned with the finances behind their children’s lives: how to pay for childcare, saving enough for school fees, and not forgetting the costs of university – now thanks to a spate of advertisements we can add the worry of should I take out life insurance in case I die before my children are self-sufficient? The latter at least gets them thinking on death, but it misses the crucial factor – who will take care of my children if something happens to me?
In Hollywood everything turns out rosy – but life unfortunately has a great many thorns and it is not always so pink and fluffy. Death is something everyone tries to avoid considering but if you are a parent, I’m afraid it is something you are duty bound to consider. Time for the legals to take precedent.
When asked the question – what will happen to your children if something happens to you – the reply is invariably my partner will take care of them. The scenario that something could happen to both parents is never considered. Unfortunately, in too many cases, the worst happens, no preparations have been made in advance and the resulting battles that ensue between family and friends as to whom should have custody only serve to bring further upset to children who are already grieving. So, what should you do as a working dad? Follow these three steps and hopefully you will get peace of mind.
Make a Will with Guardianship clauses: The first tool to consider is a will containing a guardianship clause. A guardianship clause can be inserted into any will, it sets out who should have guardianship of any minor children should both parents die. Naturally it is pointless if parents appoint different people in their wills which is why it is important that parents discuss the matter rationally, paying attention to whom would be best suited to care for the children in terms of being able to provide them with a stable, loving environment that reflects as closely as possible the type of home life the parents themselves would have liked to provide.
When appointing a guardian you need to consider: will the person or persons be old enough or mentally mature enough to take on this responsibility; will they have the time to take care of my children; do they have experience of taking care of children and finally will they bring my children up in the way I would have wished so to do?
Letter of Wishes: The Letter of Wishes is a separate document to a will. As the name suggests it allows the writer to express his or her wishes on several matters from funeral arrangements to gifts of minor property. In the case of parents, it allows the writer to produce a guide for any guardian as to how to bring up the writer’s children. It is a personal document which is not legally binding it simply provides a guide. For example, it can include a wish for the children to be offered the chance to receive a specific type of education or for the children to be allowed to own a pet.
A Letter of Wishes is not executed like a will, it can be a handwritten letter provided it is signed by the person making the will.
Once again it is helpful if both parents leave the same wishes regarding their children though this is not as important given that the document is not legally binding it is simply a means of expressing a wish.
Inform the guardian and the family!: Once you and hopefully your partner have agreed on your choice of guardians, you need to speak to them to check that they are happy to take on this responsibility should the worst happen. You should speak also to other members of your family and friends, anyone whom you think might try to get involved should you die, making sure that they are aware whom you have selected as your guardians to avoid any problematic wranglings should the situation arise.
But what about separation and divorce? Strangely it is erroneously believed that should one half of a separated couple die the surviving parent would automatically gain custody. This is not the case. Nor is it the case that any guardianship clause contained in the deceased parent’s will, will automatically take precedent. Guardianship on the death of one parent is rarely included in the family law order.
Once again, the easiest solution is for both parents to agree as to whom should be appointed guardians of their children and to include this in a guardianship clause in post-divorce wills. Given that some divorces can be acrimonious this may seem an impossible task however it should be given careful consideration and if the parents already made provision prior to separation than it is often easier to simply continue with the original wishes.
Although the guardianship clause in a will specifies whom you would wish to take over legal responsibility for your children. Should the worst happen any guardians appointed under the will would be wise to apply to the family court for a Special Guardianship Order. This is an order which rubber stamps the guardianship clause and provides the guardians with a legal document that they can produce to banks, schools or any other institution to prove guardianship of the children.
Following these steps won’t mean that your children will not suffer should both parents die because of course nothing could possibly prevent the terrible loss they will feel. However if you make provision for this situation then at least you will spare your children the horror of being fought over by warring friends and family.
We know that working fathers already experience a great deal of stress in adjusting to life as a father with all the added responsibility that brings.
Unfortunately, in the case of guardianship, you cannot wait until later to decide because sadly there might not be a later. No one likes to talk about death but where young children are concerned you and your partner, whether together or not, need to look death in the eye and decide who would get the children should the worst happen.