Guardians named in will residing overseas

Inca37

Hi all.

We are currently looking to get our will prepared. We have a 5 year old son. We have no family or friends that we wish to be named as a guardian for our child who are close. My wifes mother is our ideal choice to be named as a guardian. She is currently residing in Canada. Is it possible to name someone in another country as the guardian for your children should we both depart at the same time ?

Thanks in advance for any advice.

dzug1

It's possible - yes.


But two major practical obstacles - is MiL willing, and would the Canadians let your son into the country?

getmore4less

I would do some preliminary investigations into the practicality of Canadian immigration, citizenship and potentially adoption for a guardian of a foreign child.

This may depend on the status of the MIL.

Also need consideration are the finances, who become the trustees of the assets from the estate and how the financial support for the guardian is established.

Consider if there anyone in the UK that could administer the estate?
not essential but remote admin does have logistic issues.

Might also be worth investigating, taxation, healthcare, and any reciprocal arrangements UK has with Canada.

TBagpuss

Yes, it's possible.
It is also possible for the executors / trustees to be overseas although obviously there are practical difficulties .
Guardianship gives legal responsibilities. It is not compulsory for the child to live with the Guardian, simply that it is the guardian's responsibility to ensure that the child is cared for, so it would be possible for your MIL to be your son's gurdian even if it were not possible for him to move to live with her.

I do second the suggestion to check out the immigration position, however - in particular whether, if something happened to you, he would be allowed into Canada to live with his grandmother and if so, whether he would then be entitled to stay or whether he would only be entitled to stay while he was still a minor.

Do also think about your MIL's age - how old will she be when he is 18?

getmore4less

TBagpuss wrote: »

so it would be possible for your MIL to be your son's gurdian even if it were not possible for him to move to live with her.

Might be particularly relevant if the child is older, exam time.

That introduces other issues and would require a review of the relevant Childrens acts and/or any need for UK based guardian

peachyprice

So the child would lose both his parents and then be uprooted from his home, friends, school etc., to live in a strange country? Is there really no-one in this country you could name in the unlikely event?

DigForVictory

No-one in this country? Lonely & stressful for you, never having any backup. In the short term, put the lad down for Beaver Scouts (starts age 6) and develop an sort of extended family who can gently introduce the young chap to relative & extending independence?

On the flip side, be sure any UK based guardian has the support of their family.
My parents took on the guardian role for a couple of scholarship schoolchildren & now holiday time is fraught as the grandchildren feel overlooked.

g6jns_2

Inca37 wrote: »

Hi all.

We are currently looking to get our will prepared. We have a 5 year old son. We have no family or friends that we wish to be named as a guardian for our child who are close. My wifes mother is our ideal choice to be named as a guardian. She is currently residing in Canada. Is it possible to name someone in another country as the guardian for your children should we both depart at the same time ?

Thanks in advance for any advice.

Whilst you can express a preference for a guardian in your will it does not have much legal force. Ultimately the decision would be made by the Social Services and the Family Court that would decide what was in the child's best interests.

getmore4less

g6jns wrote: »

Whilst you can express a preference for a guardian in your will it does not have much legal force. Ultimately the decision would be made by the Social Services and the Family Court that would decide what was in the child's best interests.

When were the provisions in the childrens act 1989, section 5 changed?

g6jns_2

getmore4less wrote: »

When were the provisions in the childrens act 1989, section 5 changed?

Regardless of that the ultimate decision would be made by the Court. It is for the Court to decide what the best interests of the child are taking all the circumstances into account. They may follow the parent's wishes as set out in their wills but those are not binding on the court. The child's best interests are paramount.

Savvy_Sue

To be fair, if there's a family member named in the will, offering to take the child and no compelling reason not to let them, SS are likely to be keen to go with that, beats having to find foster carers / adoptive parents.

And we don't know that the child in question doesn't have a good and established relationship with the Canadian grandma.

BUT the Canadian immigration question would be worth investigating.