How to Appoint a Legal Guardian for Your Child

Appointing a legal guardian for your child is one of the most significant, important and difficult decisions you can make as a parent. However, it helps to ensure that any dependents will be cared for by someone you trust if you are no longer able to do so yourself. This process not only provides peace of mind but also legal clarity in relation to your child's security and wellbeing until adulthood.

In this guide, we will walk you through the process, offering practical advice and detailed instructions to help you make informed decisions and ensure that your wishes are legally recognised.

What Is the Role of a Guardian?

The role of a legal guardian - often referred to as a “testamentary guardian” - comes with great importance; individuals who are appointed become responsible for a child particularly towards their safety and welfare, according to the Children Act 1989. This role contains key parental responsibilities, ensuring that a child is correctly looked after until they reach adulthood.

One of the roles of a legal guardian is to provide a safe, stable home environment where the child can thrive. The guardian will provide the basics, such as food, clothing and shelter, but will also be expected to offer love, support, and guidance to help the child navigate through various life stages.

Guardians are responsible for making decisions regarding the child's education and healthcare. These decisions include choosing the right schools, attending parent-teacher meetings, registering the child with a GP, dentist, etc, making decisions about medical treatments, and ensuring regular health check-ups and vaccinations.

If the child inherits any property or finances, the guardian manages these inherited assets on behalf of the child, and, in doing so, will safeguard the child’s inheritance, using it responsibly for the benefit of the child until they legally become an adult. Guardians are also responsible for making legal decisions on behalf of the child, ensuring their rights are protected, and representing them in any legal matters.

Letters of Wishes

Parents can have a say about how their child is raised under guardianship, and this is done through issuing “Letters of Wishes”. Although it is not legally binding, this document contains specific requests about their child’s upbringing, such as key information about hobbies and interests, educational requests, moral or religious preferences or any other related requests.

Life Insurance

Life insurance for parents is crucial, in the event of their death. Guardians are not directly financially responsible for a child for whom they assume a legal responsibility; therefore, life insurance will financially contribute to the child’s upbringing, supporting the guardian with necessary costs.

Who Can Become a Guardian?

Nobody can automatically assume legal parental responsibility for a child if both parents have died. Therefore, a guardian must be appointed either by the parents in a Will, or through the court if no testamentary guardianship has been appointed.

The individual you choose must:

• be over 18
• have the capacity to take on the responsibility
• not have any legal restrictions that would prevent them from acting as a guardian

They could be any of the following:

• A close family member such as a grandparent, aunt, uncle, or adult sibling
• A trusted friend who you trust and who shares your values and parenting philosophy
• Another responsible adult who is willing and able to take on the role

Don’t Assume You Have An Automatic Right of Parent or Guardian

It's important to note that mothers automatically have “parental responsibility”, while fathers must either be named on the birth certificate or married to the mother to obtain parental responsibility.

Step-parents cannot assume legal responsibility for a child; they can be appointed through a provision in the Will, or they can apply for parental responsibility if they were married to a biological parent.

Grandparents must be named in the Will as legal guardians to be granted legal authority if both parents die.

If you’re not married to your partner, they can assume parental responsibility for your child if they were named on their birth certificate. If this were not the case, then they would have to apply for a Special Guardianship Order through the family court.

Tips to Help You Choose a Suitable Guardian

In some cases, choosing a suitable legal guardian is a straightforward decision for parents, with obvious candidates in mind from the birth of a child. However, it is a big decision, and for those who are unsure of who to choose, we’ve compiled some top tips to make this decision a little easier:

• Parenting Style: Does their parenting style align with your values and beliefs?
• Financial Stability: Assess their financial ability to care for your child.
• Location: Consider whether the guardian lives nearby or is willing to relocate.
• Health and Age: Consider the age and health of the potential guardian.
• Evaluate the Relationship: Consider the existing relationship between the potential guardian and your child.
• Willingness: Have a frank discussion with the person to confirm they are willing and able to take on the role.

How to Avoid Upsetting Someone Who Isn’t Chosen as a Legal Guardian

Worrying about upsetting someone who might have expected to be asked to be a guardian is natural. Here are some strategies to handle this situation delicately:

• Be Honest and Open: If you anticipate someone might be hurt, have an open conversation with them early on. Share your reasons for choosing someone else, emphasising that the decision was based on what you believe is best for your child.
• Reassure Them of Their Importance: Acknowledge their relationship with your child, letting them know how much you value it. Reassure them that their role in your child's life is still important and appreciated.
• Focus on Practical Reasons: Explain that your decision was based on practical factors, such as the chosen guardian’s location, financial stability, or age. Make it clear that your choice was not a reflection of their abilities or character.
• Involve Them in Other Ways: Consider giving them another meaningful role, such as that of a godparent, trustee, or key figure in your child’s life. Ask for their continued support in your child’s life, reinforcing their importance.
• Be Compassionate: Understand that they might feel disappointed or hurt, and show empathy towards their feelings, allowing them time to process your decision and being available for further discussions if needed.

How Can You Legally Appoint a Guardian?

Now that we’ve covered the role of a testamentary guardian, and assessed how to choose a suitable person, it is important to understand how you can put this into practice. These steps are designed to keep the process as simple as possible:

1. Choosing a Guardian: Identify your suitable guardian and discuss the idea with this person, ensuring they are willing and able to take on this responsibility. Discuss your Letter of Wishes with them, and any other important details you’d like to disclose.
2. Legal Advice and Documentation: Prior to formally including a guardian in your Will it is advisable to get legal advice to ensure that there are no unexpected issues which could cause problems further down the line.
3. Formally Include Your Wishes in Your Will: The most formally recognised way of appointing a legal guardian is through your Will. We can help you with this as part of our Will writing services or we can help you with updating an existing Will.
4. Inform Family Members and Close Friends: Make sure that family members and close friends are aware of your decision and know where to find the Will. This helps avoid confusion and disputes after your passing.
5. Keep the Will Safe and Updated: Store the Will in a safe place and regularly update it, especially after major life changes such as the birth of another child, divorce, or if the appointed guardian's situation changes.

How Do You Add Guardianship Details to An Existing or New Will?

For a new Will, you should:

1. Draft the Will: Contact a solicitor (such as ourselves) that is a member of the Association of Lifetime Lawyers to create a Will for you.
2. Include Guardian Appointment: Clearly state who you appoint as the guardian of your child. Use precise language, such as "I appoint [Guardian’s Full Legal Name] to be the guardian of my child [Child’s Full Legal Name] in the event of my death."
3. Sign and Witness: Sign the Will in the presence of two independent witnesses, who also need to sign it.

For an existing Will:

• Add a codicil (an amendment) to your existing Will to include the guardianship appointment. This also needs to be signed and witnessed.

Alternatively, if you have multiple additional amends you may find it easier to draft a new Will that revokes the previous one and includes the guardianship details.

Who Ensures the Guardianship Is Carried Out?

The “Executor” of your Will is responsible for ensuring that your wishes, including the appointment of the guardian, are carried out. The executor will apply for probate, manage your estate according to instructions in your Will, and ensure that the guardianship is established.

If there are any disputes or issues, the family court can intervene to ensure that the best interests of the child are maintained. They can appoint a guardian if necessary or resolve any disagreements.

Can a Legal Guardian Be “Removed”?

Legal guardians can be removed under specific circumstances, for example, if the appointed individual begins suffering from physical or mental illness, if they struggle with substance abuse, or if they can no longer adequately and safely perform their duties as Guardian.

If the parents are still alive and guardianship has not yet commenced, a Will can be amended and updated to remove the legal guardian, appointing another in their place.

However, if both parents have died, an application to remove the guardian can be made to the family court if close family members deem it necessary. The court will consider the best interests of the child when making a decision. If you’re considering filing for the removal of a testamentary guardian, you should seek legal advice, ensuring all procedures are properly followed.

Can Someone Apply to Become A Guardian Whilst Both Parents Are Still Alive?

Whilst slightly off-topic in terms of the core focus of this article, in some rare cases you may be asked to take on guardianship of a child whilst the parent(s) are still alive. This may happen for example, if the parent is struggling to look after both themselves and their child. In cases such as this “special guardianship” can be granted if a child cannot live with their birth parents and adoption is not right for them.

Can a Legal Guardian Be Appointed for an Elderly Person or Pet?

In the UK, a legal guardian for an elderly person is typically referred to as a deputy rather than a guardian. A deputy can be appointed to manage property and finances and in rarer cases to make health and welfare decisions. This occurs when the elderly person can no longer make decisions for themselves due to mental incapacity (such as due to dementia or Alzheimer's disease).

Pets are considered property under the law, so there is no official legal framework for appointing a "guardian" for a pet in the same sense as for a child or incapacitated adult. However, you can include provisions in your Will for a pet, including the appointment of someone to care for them.

Contact Our Solicitors In London or Cambridge to Create a Robust Guardian Will For Your Family

At Culver Law, our expert team is experienced in creating and handling Wills involving guardianship, ensuring that all processes are adhered to. Get in touch with us for a consultation to discuss your specific needs, and how we can help you.

Contact Us