How the law recognises parental responsibility and guardianship

What is a legal guardian?

A testamentary guardian is a type of legal guardian. A legal guardian is a person who has the legal authority and responsibility to care for another person, typically an underage child or an adult who is unable to care for themselves due to disability or incapacity.

The main responsibilities of a legal guardian include:

• providing a safe living environment
• making decisions about education, healthcare, and welfare
• managing finances or property

Why is appointing a testamentary guardian important

Appointing a testamentary guardian, and indeed, choosing the right person, is incredibly important as it is a means to ensure your child or loved one is secure, cared for and safe in the event of both you and your child's other parent passing away before they reach the age of 18.

Guardianship is a provision you can make to entrust the care of your child or children to someone you trust. If you do not appoint a testamentary guardian and both of your child’s parents pass away, the court will step in and decide who takes on that role.

This can be a lengthy and stressful process involving several hearings and your child may be placed in foster care until a decision has been made. As well as this, the process may not have the outcome you would want as a court may not fully understand your family dynamics.

Appointing a testamentary guardian avoids this route and allows you control over what happens to your child.

Who can become a legal guardian?

To become a legal guardian, a person must meet certain criteria and follow the legal process. A legal guardian must:

• be over 18 years old
• be mentally and physically capable of caring for the individual
• have no serious criminal record
• be able to provide a safe and stable home environment
• be able to demonstrate a close relationship or caregiving role (e.g., relative, foster parent)

How to appoint a testamentary guardian

Under the Children Act 1989, any parent who has parental responsibility for a child may appoint another individual to be the child’s guardian in the event of their death; they are known as a testamentary guardian.

The testamentary guardian can be appointed in a will, or simply in writing - so long as it’s dated and signed by the person making the appointment, or by someone else following the instructions of the person making the appointment. No specific wording is needed for the clause to be valid, it can be as simple as ‘In accordance with section 5 of the Children Act 1989 I appoint X to be the guardian of my child, Z.’

This is different from appointing godparents to children, so to ensure you’re placing the right legal protection over children in your care, it’s best to assign guardianship.

How to add guardianship details to a new or existing will

When adding guardianship details to a new or existing will you need to include a Guardianship Clause. Within this clause you should include:

• Name of the guardian(s): Clearly identify who you are appointing.
• Alternative guardians: Optional backups if your first choice is unable or unwilling to act.
• Scope of responsibility: You can include preferences for how your child should be raised (e.g. schooling, religion).
• Timing of appointment: The clause only takes effect if no surviving parent has parental responsibility.

It is important to note that while you can write your own will, it is strongly recommended to use a solicitor to avoid errors or ambiguity. Our specialist wills and probate solicitors can ensure your will is legal and in line with everything you would want to happen.

What to consider when appointing a legal guardian

When appointing a legal guardian for your child it is essential to think beyond affection and who is closest to you. The decision carries significant legal, emotional, and practical implications and assumptions on who will automatically become a child's guardian can be misguided.

It is also important to keep in mind that stepparents and grandparents do not automatically gain parental responsibility by law, even if they are deeply involved in the child’s life. A stepparent must be married to the biological parent and obtain written consent from all others with parental responsibility to gain legal rights. As well as this, a grandparent must be formally appointed in a will or apply for special guardianship through the court to be legally recognised as a child’s guardian.

In addition to the above, legal guardians are not required to provide financially for children entrusted to them. Parents should consider additional provisions such as trusts or inheritance plans and setting up life insurance to provide for the child.

Making decisions about guardianship for your children? Speak to our specialist family solicitors for industry-leading advice

It is never easy to think about what might happen if you were no longer able to care for your children or loved ones. The compassionate legal advice our leading experts in family law provide can help guide you through the process, allowing you to feel prepared and informed, without feeling overwhelmed.

Call us today on 0330 041 5869 or contact us online to arrange a call back.

Frequently asked questions about guardianship law

Who ensures a guardianship is carried out?

When a guardian is appointed through a will or court order, the Family Court ensures the appointment is legally valid, is in the child’s best interests and is carried out. In some cases, local authorities will continue to monitor the situation.

Can I make specific request about how my child is raised by a legal guardian?

Yes, you can make specific requests about how your child is raised by a legal guardian, but there are important distinctions between legal enforceability and guidance. You can include a Letter of Wishes alongside your will. This is a non-binding document that can outline your preferences for your child. While these are not legally enforceable, courts and guardians often respect and follow these wishes if they are reasonable.

Can a legal guardian be removed?

The court can be petitioned to remove a legal guardian if:

the guardian is unable or unwilling to continue being a guardian

there is evidence of neglect, abuse, or misconduct

the guardian has failed to meet legal duties, such as filing required reports or managing finances responsibly

the child’s or incapacitated adult’s circumstances have changed (e.g. regained capacity, improved parental situation)

Can a legal guardian be appointed for an elderly relative or a pet?

Legal guardianship can be appointed for both an elderly relative and a pet. You can appoint a legal guardian for an elderly person if they have lost mental capacity due to dementia, illness, or disability and are unable to make important decisions for themselves. You can only appoint a guardian if there is no power of attorney already in place.

Pets are slightly different. Pets are considered personal property by law, so they cannot be assigned a legal guardian in the same way as a child or adult. However, you can name a trusted person to care for your pet in your will and leave specific instructions about care, routines, and vet details. You might also consider leaving a cash gift to help the guardian with pet expenses.