Planning for the Future: Appointing a Guardian for Your Child

A guardian is someone appointed to take legal responsibility for a child if a parent dies. This can be an important part of future planning, particularly for parents of young children. However, appointing a guardian does not always mean that person will automatically care for the child immediately after the parent’s death. The position depends on who has parental responsibility for the child and whether any Child Arrangements Orders are already in place.

What is parental responsibility?

Parental responsibility means the legal rights, duties, powers and responsibilities a person has in relation to a child. In practical terms, it allows a person to make or be involved in important decisions about a child’s upbringing.

These decisions may include:

• where the child lives;
• where the child goes to school;
• medical treatment;
• religious upbringing;
• taking the child abroad;
• general welfare and day-to-day care.

A child’s mother automatically has parental responsibility. A father may also have parental responsibility, for example if he was married to the mother when the child was born, is named on the birth certificate, has entered into a parental responsibility agreement, or has obtained parental responsibility through a court order.

Other people can also acquire parental responsibility in certain circumstances, including guardians, special guardians, adopters and people named in certain Child Arrangements Orders.

The rules can depend on the circumstances, so if there is any uncertainty about who has parental responsibility, legal advice should be taken.

Appointment of a Guardian

A guardian can be appointed by a parent who has parental responsibility. The appointment must be:

• made in writing;
• signed by the person making the appointment; and
• dated.

A guardian is most commonly appointed in a will. This is often the most practical option because many parents consider guardianship at the same time as making wider arrangements for their estate.

However, the appointment does not have to be in a will. A guardian can also be appointed in a separate written document, provided it is signed and dated and clearly states who is being appointed.

You can appoint more than one guardian. You may also wish to appoint a substitute guardian in case your first choice is unable or unwilling to act when the time comes.

It is sensible to speak to the proposed guardian before appointing them. They should understand what the role may involve and confirm that they would be willing to take it on.

If you would like to discuss the appointment of a guardian, please contact our Wills, Tax and Trusts team.

When does the appointment take effect?

Appointing a guardian does not usually give that person parental responsibility straight away. The appointment normally only becomes relevant after the death of the person who made it.

Whether the appointment takes effect on death depends on the child’s family circumstances. If there is no surviving parent with parental responsibility, the appointment will take effect on the death of the parent who appointed the guardian.

Naming someone as guardian in your will does not automatically override the rights of a surviving parent who already has parental responsibility. The appointment of a guardian will not take immediate effect on the death of the parent if there is a surviving parent with parental responsibility unless the person who made the appointment had a Child Arrangements Order saying that the child lived with them.

If the appointment does take effect, the guardian acquires parental responsibility for the child. This does not necessarily mean the child must live with the guardian, but it means the guardian can be involved in important decisions about the child’s upbringing.

What is a “lives with” order?

A “lives with” order is part of a Child Arrangements Order. It states who a child is to live with. For example, an order may say that a child lives with one parent, or that the child lives with both parents under shared arrangements.

If the deceased parent had a “lives with” order in their favour, their appointed guardian would acquire parental responsibility for the child on their death. The surviving parent and guardian will share parental responsibility. If the surviving parent wants the child to live with them rather than the guardian, they will need to apply for a Child Arrangements Order or to vary the current Child Arrangements Order.

The position is different if there is a joint “lives with” order, meaning the child is named as living with both parents. If one parent dies and the other parent is still alive, the appointment of a guardian by the deceased parent will not take effect automatically.

In the circumstances where there is a surviving parent and there was no Child Arrangements Order in place, or there is a joint “lives with” order, the appointment of the guardian will not take effect.

If the guardian believes that the child should live with them rather than the surviving parent, the guardian could make an application for a Child Arrangements Order stating that the child should live with them. In some cases, the guardian may first need the court’s permission to make the application, where the court will consider whether the guardian should be allowed to make the application. This permission is known as “leave of the court”.

It is therefore very important to consider whether you need a “lives with” order made by the court in order to ensure the appointment of your chosen guardian will take effect. For example, if you have a new partner who you have named to be the guardian of your child, unless you have a “lives with” order in your favour, the appointment will not take effect, and your new partner will not acquire parental responsibility via guardianship.

Termination of guardianship

A guardianship will usually come to an end when:

• the child turns 18;
• the guardian dies without appointing a successor guardian; or
• the court makes an order ending the guardianship.

An application to end a guardianship can be made by:

• anyone with parental responsibility for the child; or
• the child, if they first obtain permission from the court.

Guardianship can be particularly complicated where parents are separated, where both parents have parental responsibility, where there is a Child Arrangements Order, or where a parent wishes to appoint a new partner or wider family member as guardian. Taking advice can help ensure that the appointment is valid and that you understand whether it is likely to take effect in the way you intend.

If you have any queries regarding guardianships, child arrangements or any other aspects of family law, Evangeline Evans at evangeline.evans@fsp-law.com or contact our Family & Matrimonial Team.