Nobody likes to consider the possibility of dying before their children are grown up and old enough to look after themselves but most people accept the need to make provisions in their Will ‘just in case’.
While the likelihood of the guardianship appointment ever being utilised is low the possibility still exists and the alternative can be a complicated and costly Court battle.
In legal terms a guardian is a person who has the legal authority, and the duty, to care for the personal and property interests of another person. The status is acquired over someone who is incapable of looking after their own affairs due to incapacity, disability or infancy. In many jurisdictions, like the UK, the parents can decide who is to be the child’s legal guardian in the event of their own death.
Where guardians are appointed under a Will the process is simple and straightforward. Where there is no direction from the deceased parent/s the process is much more complicated. In England there is an independent body who assist in family proceedings.
CAFCASS (Children and Family Court Advisory and Support Service) have the role of advising the Courts so that the decisions they make regarding the appointment of guardians are in the best interest of the child.
Anyone can apply to be the child’s guardian and if all parties are in agreement the investigation by CAFCASS will be much simpler. Where there is a conflict a Children’s Guardian is appointed who will be a CAFCASS officer and a more in depth investigation will be necessary. Throughout this investigation the child may be allowed to live with one of the applicants or, where it is deemed necessary, the child may be looked after by social services until the Courts can make a decision based on the report provided by the Children’s Guardian.
The process can be lengthy and distressing for all parties involved, especially where the parties are still grieving for the loss of their loved one.
Even where an application is not contested the process is still complicated by the lack of formal declaration. Laura Pearson lost her sister suddenly when she suffered a fatal asthma attack. Her sister was just 23 and Laura’s nephew, Ryan, was just 3. Her sister had been a single parent and Ryan was now an orphan. :aura took Ryan to stay with her overnight and immediately made the decision to care for Ryan along with her own son.
In the days after Laura’s death the reality that Ryan could be taken into care became apparent and Laura made a Court application to obtain a residential order. Fortunately the application was not contested and formal adoption proceedings are now in progress.