If you have children under 18, one of the most important things a Will can do is appoint a guardian for your child. A guardian is the person who would take on parental responsibility and care for your children if you died while they were still young. This guide explains how guardianship works in England and Wales, how to appoint a guardian, and what to think about when choosing one.
Why appoint a guardian for your child?
Think about what would happen if you, and any other parent with parental responsibility, were no longer here. Without a guardian appointed in writing, family members may need to apply to the court for an order so they can care for your children. Also, relatives may disagree about who should take on that role, which adds stress at a very difficult time.
Appointing a guardian lets you choose the person you trust most. It does not guarantee every outcome, because the court can still become involved if there is a serious concern about a child’s welfare. However, it gives clear legal effect to your choice and reduces the risk of uncertainty and disputes.
Understanding parental responsibility
Parental responsibility means all the rights, duties and authority a parent has for a child. It covers decisions about education, medical treatment, where the child lives and their property.
- A child’s birth mother always has parental responsibility.
- A father has it if he was married to the mother or in a civil partnership with her when the child was born.
- An unmarried father has it if he is named on the birth certificate (for births registered from 1 December 2003), or through a parental responsibility agreement or court order, or by later marrying the mother.
- A second female parent can have parental responsibility in similar ways.
- A step-parent does not gain parental responsibility simply by marrying a parent.
How to appoint a guardian
- Choose your guardian. Think about who would care for your children in the way you would want, and talk to them first.
- Put it in writing. An appointment must be in writing, dated and signed. Including it in your Will is the most common and reliable way to do this.
- Understand when it takes effect. Usually, the appointment takes effect when no parent with parental responsibility is still living. It can also take effect on your death if you had a child arrangements order stating that the child lives with you, and you were the only person with such an order.
Each parent with parental responsibility can appoint a guardian. So if you and your partner both make Wills, it makes sense to agree your choice together. You can also appoint more than one guardian to act jointly, and name a substitute in case your first choice cannot act.
Choosing the right guardian
When choosing a guardian for your child, consider:
- their values and approach to parenting
- their age and health
- where they live, and whether your children would need to move home or school
- their relationship with your children
- whether they have space and time in their own family life
- whether they are willing to take on the role
Godparents are not automatically legal guardians. If you want a godparent to be a guardian, you must appoint them in writing.
Guardians who live abroad
You can appoint a guardian who lives outside England and Wales. However, if your children would need to move abroad, the appointment may need to be recognised under the law of that country too. So it is sensible to take advice in that country, and we can refer you to an appropriate professional.
Short-term care is not guardianship
A guardian appointed in your Will only acts after your death. It cannot cover times when you are away, in hospital or otherwise unavailable for a while.
For short-term care, a parent can arrange for someone else to look after a child and, if needed, delegate some parental responsibility to them for that period. Many parents do this informally or with a signed letter of consent for school trips or medical treatment. This is separate from making a Will.
Financial provision for your children
A guardian looks after your children, but they will also need financial support. Your Will can set up a trust to hold money for your children until they reach a chosen age. Your trustees can then use it for their maintenance, education and wellbeing. You can choose the guardian as a trustee, or appoint different people to keep the two roles separate.
Reviewing your choice of guardian
Your choice of guardian may change over time. Review it after events such as:
- births or deaths in the family
- marriage, separation or divorce, including your guardian’s
- a move by you or your guardian
- a change in your relationship with the guardian
Our Safe Will Plan includes fireproof storage, an annual reminder and a free yearly review. The Legacy Care Plan adds one minor update a year and a brand-new Will every three years for Wills written by A.D.E. Wills.
Appoint a guardian in your Will with A.D.E. Wills
Edward can include a guardian appointment in your Will, along with any trust for your children. To arrange a free initial chat, call 01865 507174 or email info@adewills.co.uk. You can read more about our Will writing service, or see GOV.UK guidance on making a Will.
