Michael Jackson’s life was carried on in the media spotlight and, from recent press reports, it would seem that the headlines and controversy which surrounded his life will continue for some years after his death.
Recently, a US court temporarily removed Michael’s mother, Katherine, from being guardian of his three minor children and appointed his nephew, TJ Jackson, in her place.
When a dispute of this kind becomes public, it may lead parents with minor children to consider whether they should appoint a guardian for them in case both parents die before the children reach adulthood.
In England and Wales, anyone with ‘parental responsibility’ for a minor child can appoint a guardian to look after that child after their death. This appointment has to be in writing and signed by the person making it. It does not have to be in the form of a will, but it is convenient to consider the appointment of guardians when drawing up a will.
If both parents have parental responsibility (as would be the case with a married couple), the appointment of the guardian will only come into effect on the second death. In all cases, the court continues to have the overriding jurisdiction in the event of a dispute and will make its decision taking into account the best interests of the child.
The appointment of guardians can be a difficult decision and it is highly advisable to discuss this with the potential guardians and to obtain their agreement before finalising the arrangement.
It can be a good idea to place a separate letter with your will setting out your wishes as to how your child or children should be brought up. For example, you may have strong views as to the religion they should follow or where they should be educated. If requests of this kind are included in a separate letter, its contents will remain a private communication between you and your children’s guardian. Although not legally binding on the guardian, such a document will have moral force and could be of enormous assistance to the guardian in making future decisions.
As finances are vitally important in the upbringing of any child, you may consider appointing the guardian as a trustee of your estate so that they will have an ongoing role in managing the money which your children will ultimately inherit and which in the interim can be used for their maintenance, education and general benefit.
In addition, you could consider including an appropriate direction in your will in order to ensure that the guardian does not suffer financial disadvantage as a result of their appointment.