Appointing Guardians for your Minor Children

In the unlikely event that both parents die before their children have reached the age of 18, parents want peace of mind that their children are well taken care of by people of their choosing.

This can be achieved through the appointing of guardians within a will. As such we have prepared this guide to assist parents with their decision.

Who can be a guardian?

Any individual can be a guardian if they are over the age of 18 and are mentally capable. Whilst most people appoint two people (usually a couple) you can choose up to four people.

Having to decide who is to take on the responsibilities of raising your child(ren) can be one of the toughest decisions a parent can face.

As such set out below are some of the factors we believe parents should consider to narrow down their decision:

• Whose parenting style and beliefs match yours?

• Who is financially capable of taking on the responsibility?

• Is the person physically and emotionally fit for the responsibility?

• Who does your child feel comfortable with?

• Are they planning to have children of their own?

• Do they already have children and will your child/children get along with theirs?

When deciding, it is important to note that guardianship can be flexible and for a specific period. For example, if you want your parents to be your child(ren)’s guardians but are worried about their age a child can be put under their care for a designated period (i.e 10 years) and then a second guardian(s) takes over.

Given that a decision to appoint a guardian is not always binding it is always important to discuss the matters with anyone who could be affected whether directly or indirectly. This is due to the fact that someone could challenge the appointment in court and it would be left to the court to decide who is best placed to act as the guardian.

Whilst separate guardians can be appointed for different children it is often advised that children are kept together in what will already be a traumatic period in their lives.

Finally, to avoid any difficulties it is often advised that couples appoint the same guardian(s).

Who can appoint a guardian?

In accordance with section 5(13) of the Children Act 1989 only the following can appoint guardians:

• A parent with parenting rights for a child. It is important to note that under section 2 of the Children Act 1989 mothers have automatic parent rights, however fathers who are not married to the child’s mother do not.

• The Courts

• A guardian whose appointment has taken place

• A special guardian

How do I appoint a guardian?

The most common way of appointing a guardian is through a will. However whilst being the recommended and preferred way having a will is not a must. For an appointment to be valid it must be documented:

• In writing

• Dated

• And signed by the person making the appointment. However, if made in a will that is not by the testator, it must have been signed at the testator’s direction in accordance with section 9 of the Wills Act 1837.

What happens if I choose not to appoint guardians?

If parents opt not to appoint guardians, then the decision will be left to the Courts. If parents informally agree with friends or relatives about the care of their children, then nobody will have parental rights for the children unless:

• Appointed by the court

• An adoption order is made by the court

• Parental rights are acquired by a step parent whilst married to one of the parents.

When does the appointment take effect?

The appointment only takes effect on the death of the person who made it subject to there being no one with parental rights for the child.

What if there is an unforeseen change in circumstances?

If for any reason there is a change of circumstances or you merely change your mind a new will or documents should be prepared to reflect this. In addition, it is advised that substitute guardians are considered in a will should the situation arise that your chosen primary guardians pass away. By doing so you would avoid the need to draft a new will should this take place.

How will the guardian support my child(ren)?

A guardian will not have an obligation to support a child from his/her own resources. However, this issue can be resolved through a will in one of the following ways:

• By leaving the residue of the estate to be held on trust for the child(ren);

• By leaving a legacy to the guardian(s) subject to the individual becoming a guardian;

• By including a provision in the will that would allow the trusts to make loans to the guardians;

• Including a letter of wishes in making it clear that you would like the trustees to use their powers under the will to support the child(ren).

We hope that you have find our guide useful and if you have any questions or would like to have a will drafted to reflect your wishes or would like to come in for a free will review, feel free to contact us today and we will be happy to assist you.

A Social Evil or Generational Empowerment?

Tax Planning in light of GAAR and the Panama Papers

There is much interest in the Panama Papers and the fact that a law firm in the Carribean has acted for various international figures (both famous and infamous) to avoid tax.

Here in the UK, the spotlight is on the Prime Minister. The Panama Papers revealed that his father was party to an off-shore tax avoidance scheme and that his mother utilised the legal and widely acceptable form of tax planning called "lifetime transfers".

None of the allegations against the Prime Minister are illegal. Sadly, however, we live in a world where tax planning is regarded by many as reprehensible, a social evil. It does not help that the media sensationalise these issues. It is clear from recent media releases that journalists cannot differentiate between off-shore hedge funds and off-shore family trusts. And sadly, the general public cannot seem to differentiate between companies avoiding taxes (such as Google and Starbucks) and honest hardworking individuals who simply wish to protect their assets and pass them on to the next generation.

The HMRC has recently introduced anti tax-avoidance regulations called GAAR. According to the HMRC, if they regard the tax planning to be abusive - then there will be a challenge. They will analyse each tax planning scheme on a case by case basis.

If your estate is worth more than the nil-rate band (currently frozen at £325,000 until 2021), it is important that you receive bespoke tax planning to ensure that your wealth is preserved for the next generation. The tax planning must be bespoke and tailored to your particular needs. In light of GAAR, the Panama Papers and the HMRC taking an increasingly tough stance on what they regard as abusive planning, gone are the days where you can have an IHT and CGT saving scheme that can be rolled out for everyone.

If you have not revisited your Will for more than a couple of years, or perhaps your will was drafted pre-2007 and it contains a Nil-Rate Band Discretionary Trust - it is time to book an appointment with your Solicitor to see if your Will still suits your requirements. Also, if you took advantage of the lacuna which pilot trusts intended to exploit, this cavity has now been filled and can no longer be exploited. It is therefore important that you speak to your lawyer to ensure to check that your pilot trusts are still valid.

There are also tried and tested lifetime and estate planning strategies which your solicitor can discuss with you to ensure that your wealth is preserved for the next generation. For example, despite what the papers say about Mrs Cameron's gifts to the Prime Minister, lifetime transfer is not a social evil. It is a well established planning tool for preserving wealth in the family and empowering the next generation.

There are other reliefs which if utilised properly can ensure that your assets stay within the family such as Business Property Relief (BPR) and Agricultural Property Relief (APR). There are ways to increase the nil-rate band inheritance tax threshold by utilising the transferable nil rate band and the residential nil rate band. It is important that these reliefs are nailed down and not lost.

At Posada and Co, our lawyers can help you with your estate and capital tax planning needs. We can provide you with an Estate Planning Report following an initial fact-finding meeting with one of our lawyers (which lasts between 60 to 90 minutes, depending on your circumstances). Our usual minimum charge is £450 plus VAT for the Estate Planning Report.

For more information, please contact us on 020 3744 3800.

This article is written by Delfin Posada. Delfin is a director and the founder of Posada & Co. Delfin qualified as a Solicitor and Barrister in Australia in 1999 and has been practising in the UK since 2004.