Guide to Legal Guardianship

If you've got children under 18 or anyone else who depends on you, make sure you discuss with your family who'd look after them after you've gone. It's tough to talk about, butdon't put it off. Making plans and provisions now will help to ensure they're safe and cared for if the worst happens, especially if you're currently the only living parent.

When you discuss it, first make sure those you've asked are prepared to do it, as it's a big commitment. You can then name them in your will as legal guardians. However, if further down the line they become unable to look after them, or if they refused, a court would appoint a suitable guardian instead.

Our guide to guardianships covers the main points you need to know.

Why appoint guardians?

If you fail to appoint guardians in your Will and your children are orphaned before they reach 18, the courts will appoint guardians instead, but they won't necessarily choose the people that you would have preferred to take care of your children. Therefore, it's important for you to make your wishes known.

Normally, in a two parent family, if one parent passes away, the other will continue to have full responsibility for the children. However, if neither parent is alive, the guardians you have appointed will take over the responsibility of raising your children.

By appointing guardians you can ensure that your children are looked after by the people that you have chosen as the best people for the job.

How to appoint guardians

To appoint legal guardians for your children, you must name them as your chosen guardians in your Will. Before doing this you will need to approach the people you would like to appoint as guardians to find out whether they are willing and able to take on this responsibility. You may also wish to appoint alternative guardians, who will take their place if your intended guardians pass away.

Roles and responsibilities of guardians

The roles and responsibilities of guardians include the following:

  • Day-to-day care of the surviving children.
  • Making decisions about the children's upbringing, education, health and welfare.
  • Usually a Guardian will also be one of the Trustees for the property held in trust for the child/children.

Choosing guardians

When considering who to appoint as legal guardian for your children, you will need to consider the following:

  • How do I feel about their values and parenting skills?
  • Are they able to offer a stable family environment?
  • What is the quality of their present relationship with my child/children?
  • Are they willing and able to handle the responsibility of caring for my child/children on a long-term basis?

How many guardians to appoint

You may appoint just one guardian, however, most people when writing their Will choose to appoint two, typically a couple.

Should I make the guardians also be trustees?

Many people choose to do this, as the guardians will be taking care of your children's finances until they are 18. If you do this, it is advisable also to appoint another trustee who is not related to the guardians, e.g. a solicitor or accountant. Doing so will help to provide objectivity and guard against conflicts of interest. It will also provide the guardians with some support in handling the financial and legal aspects of a trust.

Who can appoint guardians?

You may only appoint guardians for children in your Will if you currently have 'parental responsibility' for the children. To find out whether you have parental responsibility under the law, follow one of the links below:

  • For births registered in England and Wales click here.
  • For births registered in Scotland click here.
  • For births registered in Northern Ireland click here.

Changing guardians

In some circumstances it may become necessary to change your appointed guardians, for example:

  • One of your intended guardians dies
  • Your intended guardians have separated or divorced
  • Your intended guardians have left the country or had some other major life change
  • Your intended guardians are no longer able or willing to take on the responsibility

You can change your appointed guardians in one of two ways:

  • By writing a codicil
  • By appointing in your Will alternative guardians who would take on the responsibility for your children if your intended guardians die before you do.