If you have young children, it is important that you make provision for their upbringing and care in the event of your death, by appointing a guardian.
Such an appointment is normally made in your Will, so be sure to make a Will if you have not already done so – or to update it once you have children. Some events that trigger revisiting the appointment of a guardian are: your or the guardian's divorce, you or your guardian leaving Bermuda to reside abroad, the death of your spouse or guardian, serious illness of your child, guardian or spouse. It is very important that you appoint a guardian of any minor children that you may leave behind at the time of your death. Guardians can be the executors and/or trustees of your Will (usually defined simply as 'trustees') or members of your family. You can appoint more than one guardian.
It would be prudent, however, to consider whether appointing the trustees of your estate as the guardians of your minor children could result in a conflict of interest where one person is both guardian and trustee. Your trustee is responsible for protecting your child's inheritance by minimising the erosion or depletion of the capital set aside from your estate in trust for your child. A guardian's primary focus, meanwhile, is on your child's well-being. Consequently, the guardian is more likely to attempt to obtain more funds for the upbringing, care, health and education of your child, which may conflict with your trustee's focus on preserving the child's capital. Such competing goals can easily lead to conflict.
You should also consider whether you will have enough capital in your estate to ensure your child's financial well-being and, if there is any doubt, consider purchasing term life insurance and maintaining it during your child's minority. Appointing a guardian is critical and should be made only after careful consideration. Your death will be traumatic enough on your minor child and a careless selection of an unsuitable guardian may be more than your child can handle. As it places a very heavy responsibility on the appointee, you should first get the proposed guardian's consent.
You should also consider the prospective guardian's health, financial resources, location and outlook on life, among other things. You want someone who shares your views on education, religion and other important matters that will impact your child. You should also ensure that your appointee is healthy, and capable of caring for your child. Choosing someone who lives in Bermuda will avoid the likelihood of your child being uprooted to another country. The stress of moving to unfamiliar surroundings at a time when your child is trying to deal with your death is likely to prove difficult.
Choosing a married couple may not always be wise when taking into account today's 50 per cent divorce rate. Instead, for example, of naming your brother and his spouse, just name your brother to avoid a problem should they divorce. If you decide to appoint a single guardian, you should also consider appointing a substitute in case your first appointee predeceases you, or is unable or unwilling to accept the appointment on your death.
When appointing a guardian keep in mind the provisions of section 11 of the Minors Act 1950, which states as follows:
- In this section "the court" means the Supreme Court or a Special Court.
- The father of a minor may by Deed or Will appoint any person to be guardian of the minor after his death.
- The mother of a minor may by Deed or Will appoint any person to be guardian of the minor after her death.
- Any guardian so appointed shall act jointly with the mother or father, as the case may be, of the minor so long as the mother or father remains alive unless the mother or father objects to his so acting.
- If the mother or father so objects, or if the guardian so appointed as aforesaid considers that the mother or father is unfit to have the custody of the minor, the guardian may apply to the court, and the court may either refuse to make any order (in which case the mother or father shall remain sole guardian) or make an order that the guardian so appointed shall act jointly with the mother or father, or that he shall be sole guardian of the minor, and in the latter case may make such order regarding the custody of the minor and the right of access thereto of its mother or father as, having regard to the welfare of the minor, the court thinks fit, and may further order that the mother or father shall pay to the guardian towards the maintenance of the minor such weekly or other periodical sum as, having regard to the means of the mother or father and the needs of the minor, the court may consider reasonable.
- Where guardians are appointed by both parents, the guardians so appointed shall after the death of the surviving parent act jointly.
- If under section 10 (of this Act) a guardian has been appointed by the court to act jointly with a surviving parent, he shall continue to act as guardian after the death of the surviving parent; but if the surviving parent has appointed a guardian, the guardian appointed by the court shall act jointly with the guardian appointed by the surviving parent.
As with all complex matters of law, it is wise to consult an attorney expert in the area.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.