appointing a guardian

what is a guardian?

a legal guardian is someone who has the legal authority to take care of a child should anything happen to the child’s parents. guardians typically gain parental responsibility for any children they have been appointed to look after. this means that the guardian is responsible for making all parental decisions and may be responsible for managing a child's property and inheritance. in other words, the guardian assumes the responsibilities of the child’s parents. a child can have more than one guardian at one time (eg a couple may be appointed as guardians of a child).

who can appoint a guardian?

the following people can appoint a guardian to look after their child:

• anyone with parental responsibility for the child (eg the child’s mother)

• the child’s existing guardian

• in england and wales only, the child’s special guardian (ie someone with whom a child lives if they cannot live with their birth parents and adoption isn’t a suitable option)

why do i need to appoint a guardian in my will?

designating guardians in your will ensures that your child will be taken care of if their parents die. it also enables you to choose and control who will look after your child. 

if you don't name a guardian in your will, the court will decide who will be given custody of your child after your death.

guardians appointed in a will are more formally known as ‘testamentary guardians’.

how do i appoint a guardian?

the processes for appointing a guardian is set out in the children act 1989 and the children (scotland) act 1995. you can appoint a guardian in:

• your will - as soon as a child is born, you should make or update your will to appoint a guardian

• another document (eg a specific letter) - to be binding, this document must be made in writing and be signed and dated by the person making the appointment. the document may also be signed and dated by another person if they make the document for you in accordance with your directions (eg if a solicitor writes the letter on your behalf)

in practice, it is best to appoint a guardian in your will. you can make a will appointing a guardian using our last will and testament for england and wales or our last will and testament for scotland.

who can be a guardian?

generally speaking, any adult can act as guardian for a child provided they have mental capacity. it is otherwise up to the person appointing a guardian to decide who is most suitable for the role of guardian.

considerations for appointing a guardian

you may choose to have more than one guardian, but make sure that the people you choose will work well together to agree on what is best for your child. for example, one guardian can be in charge of taking care of your child and living with them, while another guardian can be appointed to manage your child’s assets.

you should also name an alternate guardian in your will. an alternate guardian is someone who can act as guardian if the person (or people) you originally appointed as guardian(s) are not able to fulfil their role. naming an alternate guardian ensures that your child is looked after by a person of your choosing.

before appointing the guardian, make sure the person in question is willing to act as guardian. if the person you name as guardian in your will does not want to act as your child’s guardian, they can refuse to do so. you should always ensure your chosen guardian is happy to accept the role and the responsibilities that come with it.

how do i choose the right guardian? 

a guardian can be a member of your family, but it does not have to be. when making your choice, take into account things like parenting abilities and other practical considerations.

the following criteria may help you decide who to appoint as a guardian:

• your child’s relationship with the proposed guardian - consider how well your child knows the proposed guardian, whether they would feel comfortable living with them and whether they have a good relationship with them

• family structure and relationship status - it's important that your child becomes part of a stable and comfortable family environment. consider whether the intended guardian is able to provide such an environment. for example, if they already have children, check if they would be able to handle the responsibility of raising another child

• lifestyle - consider appointing someone who shares your lifestyle, to preserve your child's habits and way of life as much as possible

• health and age of the guardian - make sure your guardian has the mental and physical ability to raise a child

• personality - raising somebody else's child is a very difficult task. consider appointing someone caring, patient, dedicated and trustworthy

• financial stability - a stable job and income or another method of ensuring financial stability can ensure that a child is raised in a healthy and secure environment

• location - it may be better for your child to live in a place that's not too far from where they've been raised. you should take into account how far away from your current home and your child’s school, relatives and friends the intended guardian lives

what are a guardian's responsibilities?

guardians effectively act as parents. it is their responsibility to raise and care for a child until the child becomes an adult. this role includes making decisions that are in the child's best interests and managing the child’s financial assets.

a guardian's duties should be written down in your will or in a letter. importantly, these duties should reflect your wishes regarding your child's upbringing. this includes choices related to your child’s:

• health

• school and education

• food and diet

• hobbies

• religious practice

when does a guardianship take effect?

the point at which a guardianship takes effect differs from england and wales to scotland.

england and wales

generally, a guardian appointed in a will gains parental responsibility for the relevant child on the death of the parent who made the will if either: 

• the child has no parents with parental responsibility (ie everyone with parental responsibility for the child has died). this happens automatically, or

• a child arrangements order is in place that specifies that the child should live with the person who appointed the guardian. this is the case even if the child has a surviving parent with parental responsibility. in this case, the guardian and the surviving parent will share parental responsibility for the child

parental responsibility will not automatically pass to the guardian on the death of one parent if the child has a surviving parent with parental responsibility and: 

• the surviving parent is named on the child arrangements order as someone the child may live with, or

• there is no child arrangements order in place

if a guardianship takes effect and there is a surviving parent, the guardian can act together with the surviving parent and any disputes between the two will have to be settled by the court. 

if a special guardian appoints a guardian in a will, the appointment will take effect if the special guardian is the child’s only (or last surviving) special guardian. this is the case even if the child has surviving parents with parental responsibility. the appointment will not take effect if another special guardian is still alive. in this case, the child will live with their remaining special guardian.

scotland

a guardian appointed through a will in scotland gains parental responsibility for the child on the death of the person who made the will. this is the case even if the child has another parent with parental responsibility.

the guardian and remaining parent must work together and agree on what is best for the child.

can a guardian be called upon when a child’s parents are not dead?

generally, guardians only act when a child’s parents (or special guardians) have died. however, there are certain situations in which a guardian may be called upon when this is not the case. for instance, a guardian may be asked to act if a surviving parent cannot perform their role because they:

• are overseas

• are in the armed forces

• are in prison

• are disabled or mentally incapacitated

• refuse responsibility

when does someone stop being a guardian?

generally, a guardianship ends when a child reaches the age of 18 (ie when they are no longer a child). a guardianship will also come to an end if a guardian dies while a child is still a minor (ie under the age of 18).

under the children act 1989 and the children (scotland) act 1995, a guardian’s appointment can also be brought to an end early by a court order if:

• someone with parental responsibility for the child makes an application to cancel the guardian’s appointment

• the child makes an application to cancel the guardian’s appointment

• the court decides that it is in the child’s best interest to cancel the guardian’s appointment (even if no application has been made)