Guardianship

Establishing Guardianship in your Will

Guardianship is a difficult thing for us to think about.

Every year 1000s of UK citizens die unexpectedly without leaving a will. This leaves a huge legal black hole for families to deal with.

Specifying guardianship allows you to elect who plays an active role in your children’s upbringing if you and your partner are no longer here.

This is a legally recongnised document giving clear instructions to the UK courts about relatives and friends you know and trust.

It will also allow you to specify when and how your children will inherit.

This is important if you have significant assets and are worried that they might not be able to manage them properly when they turn 18.

You can also appoint trustees to oversee their bank accounts and finances at large until they come of age.

Frequently Asked Questions about Guardianship

WHAT IS GUARDIANSHIP?

Guardianship specifies who amongst your friends and/or family members should take parental responsibility for your children in the event of both birth parents passing away. It is written into your will.

The guardianship of children in England and Wales is regulated by a piece of legislation known as the Children Act 1989.

You may access the full text on legislation.gov.uk.

WHAT HAPPENS IF YOU DO NOT SPECIFY GUARDIANSHIP IN YOUR WILL?

If one spouse dies then responsibility for the children automatically passes to the other.

However, if both birth parents unexpectedly – in a traffic accident, for example – then the UK Courts will decide who becomes guardian.

Without specifying guardianship, you will have no influence on who this may be.

The court will generally give preference to close family members, such as grandparents, aunts, uncles, or other adult siblings, if they are deemed suitable and willing to take on the role of legal guardian.

However, this decision is not guaranteed and may not align with your preferences.

If multiple family members express an interest in becoming guardians, this could lead to disputes and potentially a prolonged legal process to determine the best option for the child.

In extreme cases where no appropriate family member is available or willing to take on guardianship, the local authority (social services) would likely become involved in the process.

This means that the children may be placed in foster care temporarily.

To ensure that your children are cared for by the individuals you trust and according to your wishes, it's crucial to include guardianship provisions in your will.

By appointing a legal guardian, you can provide clarity and peace of mind about your children's future well-being.

WHAT ARE THE GUARDIAN’S RESPONSIBILITIES?

A guardian takes full responsibility for your children. They will provide financial support and make all major day-to-day decisions, such as how the children are brought up, their education, medical treatment, financial welfare and personal welfare at large.

Essentially, the guardian of the child takes the place of the birth parents by taking on full welfare powers.

In many cases the guardian also acts as the trustee of the property and wealth held in trust for the children, managing their bank accounts and finances at large.

WHO SHOULD I CHOOSE AS A GUARDIAN?

Guardianship is a big responsibility.

First of all, the person you choose should be willing to take on the role.

As the future carer of ryour child, they should also have a good balance of being able to provide affection and emotional support along with the ability to make important decisions on behalf of your children.

When choosing a guardian in your will, consider the following factors to ensure the suitability of the appointed individual:

• Willingness and Emotional support: The chosen guardian should be willing to take on the role of carer and have a genuine desire to look after your children. Look for someone who can provide affection, emotional support, and stability to help the young person cope with potential challenges that may arise.

• Decision-making abilities: A suitable guardian should possess strong decision-making skills. As the legal guardian, they may need to make important choices regarding the child's education, healthcare, and overall well-being. Ensure that the individual you choose is capable of making sound judgments in the best interest of your children.

• Stability and long-term commitment: Look for someone who can offer stability and a long-term commitment to caring for your children. Guardianship can last until the child reaches adulthood, and the appointed individual should be willing and able to provide consistent support throughout that period.

• Communication and collaboration: Consider someone who can communicate effectively with your children, other family members, and professionals involved in their care. A guardian who can collaborate with educators, healthcare providers, and therapists can ensure that the child's needs are met comprehensively.

• Financial responsibility: While financial means are not the sole factor, it is essential to consider the financial stability of the chosen guardian. They should be capable of managing the child's inheritance or resources responsibly, particularly if the young person has special needs that require extra financial support.

• Family values and beliefs: Reflect on the family values and beliefs that are important to you, and try to find a guardian whose principles align with yours. This can help maintain continuity in the child's upbringing and ensure that they are raised in an environment that reflects your values.

• Continuity of care: If possible, choose a guardian who already has a close and positive relationship with your children. Familiarity can ease the transition and provide a sense of continuity during a challenging time.

• Understanding Special Needs: If your child has special needs or a mental disorder, it is crucial to select a guardian who understands their condition and can cater to their unique requirements. An individual with experience in dealing with similar situations or a willingness to learn and adapt to the child's needs can be an excellent choice if you child requires special support services.

CAN GUARDIANSHIP BE SHARED?

Yes, Child Law in England and Wales allows you to name more than one legal guardian.

Many people choose at least two people, often from different sides of the family. It’s also common to choose people can provide a good mix of emotional and practical care.

You should also name a second set of guardians when making a will.

You might not think about it again for some years and situations and circumstances can change. It could even be the case that your chosen guardians have passed away too.

CAN GUARDIANSHIP BE CONTESTED?

Yes. However, you will need to seek professional legal advice about this before proceeding.

CAN GUARDIANSHIP BE TRANSFERRED TO ANOTHER PERSON?

Yes. See above.

CAN GRANDPARENTS GET GUARDIANSHIP?

Yes. Grandparents are often ideal guardians.

IS GUARDIANSHIP THE SAME AS POWER OF ATTORNEY?

No. Power of Attorney is a completely separate thing.

For further information, visit our dedicated Power of Attorney webpage.

DOES THE TESTAMENTARY GUARDIAN HAVE PARENTAL RESPONSIBILITY WHILE THE PARENTS ARE ALIVE?

No. The appointed guardian does not have parental responsibility while the parents are alive.

As per the Children Act 1989, parental responsibility means “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”.

IS TESTEMENTARY GUARDIANSHIP THE SAME AS SPECIAL GUARDIANSHIP?

No, they aren’t.

In the UK, testamentary guardianship and special guardianship are two totally different legal arrangements.

Testamentary guardianship is a legal arrangement specified in a parent's will.

When parents create a will, they can appoint a guardian or guardians to take care of their minor child in the event of their death.

This legal document outlines the parents' wishes regarding who should assume parental responsibility for the child, ensuring that there is a designated person or persons to care for the child in case both parents pass away.

Special guardianship encompasses a whole different scenario.

Special guardianship is a legal order granted by the court to appoint one or more individuals as "special guardians" for a child when a child cannot live with their birth parents (e.g. due to parental incapacity).

A child’s special guardian provides the child with a stable and secure environment while maintaining some level of legal connection to their birth parents.

In the UK, obtaining a Special Guardianship Order involves a formal guardianship application to the court.

Before applying for such a guardianship order, interested parties may consider initiating the process with a Child Arrangements Order, which determines the child's living situation and contact with non-resident parents.

The court conducts a thorough special guardianship assessment to evaluate the suitability of the prospective guardians before granting the Special Guardianship Order, which confers full parental responsibility to the appointed special guardian(s).

Have some more questions? Don’t hesitate to call us on 0800 29 88 66 1 or 020 8340 3102