What if you both die in a car crash? Or one of you is killed and the other incapacitated? What happens to your children then?
These are uncomfortable questions which Noeline Blackwell, director general of Flac (Free Legal Advice Centres), makes no apologies for asking when she is hounding people, not only to make their wills (only an estimated one in 10 Irish people has made a will) but also to give careful consideration to whom they nominate as guardians for their children.
She learnt from experience as a solicitor to advise couples who hadn’t given guardianship any thought to go away and talk about it among themselves.
“I didn’t want one turning to the other and saying, ‘Well, your mother isn’t going to be one of them anyway’.”
Your values
Nominating guardians for your children raises a lot of questions about your values, she points out. “How do I want my child to grow up and to whose care will this child be best suited?”
Also, you have to look at the imposition you might be making on, say, a parent, or somebody who thinks their childrearing days are over, or on a sibling who might already have family commitments.
There is no obligation to tell the people you are nominating as guardians but common sense would dictate that it is something you would discuss with them – and not just at the end of a boozy dinner with friends when people are getting maudlin.
“Anybody thinking of taking on the responsibility should feel free to say ‘I am sorry, I will do everything I can but that’s not for me’, ” Blackwell says, “because you really are stepping into the shoes of the parents if both parents are dead.”
Major adjustment
Hopefully there will be some assets that can be left in trust for the children, to relieve the financial burden, she says, “but it is still a major adjustment that you are asking people to make”.
The other thing to remember is that somebody you might choose as guardian in a will just after a child is born might be very different to somebody you would want 10 years later, so it is useful to review your will, Blackwell stresses.
Parents can nominate a co-guardian to assist a surviving parent. If a couple is on good terms and talking, the sensible thing is to make the same decision on who that should be.
Estranged couple
“Where a couple is estranged, it can be a lot trickier,” she says. A co-guardian may be nominated by a parent in an attempt to provide some influence from his/her side of the family to the child’s upbringing.
If guardians aren’t appointed by will, an interested person can come along and apply to the court to be guardian of the child. If nobody comes forward, the child will become a ward of court and taken into the care of the State.
For same-sex couples, there can be a particular difficulty, Blackwell warns, if the biological parent dies without making a will in which he/she makes the other person a guardian.
“You could have a very nasty situation developing,” she adds, “depending on family tensions.”
See flac.ie; also thinkahead.ie, an awareness-raising initiative supported by the Irish Hospice Foundation.
