A person with parental responsibility can appoint a legal guardian by including them in their will. It’s important to select someone you trust - someone who will raise your child with values and beliefs that align with your own. If a guardian is not named in the will, the court will determine who assumes this role, which may not align with your wishes.
In this article, we will be discussing what a legal guardian is, how to choose one and the process for appointing.
What is a Legal Guardian?
A legal guardian assumes all parental rights and responsibilities as if the child were their own. This takes effect once both parents have died and no one can assume the role. The guardianship remains in place until the child turns 18 years old.
Becoming the legal guardian for a child is a huge responsibility that comes with significant and life-changing implications for the individual involved. The legal guardian must provide the following to the child:
Housing
Educational support
Healthcare
Financial support
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Why Appointing a Guardian in the UK is Essential
There are a couple of reasons why appointing a guardian is important for reasons such as:
Legal Clarity
Should both parents pass away and there is no legal guardianship in the will, the courts will determine who should raise the child. This can either be a foster care system or with another family member.
By including a named legal guardian in your will you can avoid any potential disputes. You’ll also have some peace of mind knowing that your child will be raised as you wish.
Continuity for Your Child
By planning your child's future, you are providing them with continuity, which is crucial in what would be a very emotional and challenging time for them. You may choose to name someone who lives near you so the child can continue in their school, keep their friends, and not break any major routines they may have.
How to Appoint a Guardian in the UK: Step-by-Step Process
To ensure that your guardianship wishes are fulfilled, there are a few steps you’ll need to go through:
Choose Suitable Guardians
The first hurdle in choosing a guardian is making sure they agree to become guardians. If you name someone who doesn’t wish to become a guardian, they do not have to accept the role.
As part of the appointment process, external factors should be considered as these can have significant ramifications for the child's upbringing. The factors surrounding the guardian include:
- What is their age and is it significantly older than yours?
- Are they healthy enough to bring up a child?
- Are they financially stable enough to support the child?
- Is their parenting style similar to yours?
- Do they share similar religious or ethical beliefs as you?
- What is the child’s relationship to them?
Include Guardianship in Your Will
You should include the name and relationship the guardian has to the child in your will. Due to the responsibility involved in this role, it is recommended that you use a will-writing solicitor to ensure the document is valid and legally binding resulting in no challenges around guardianship
Name Backup Guardians
You should name backup guardians should your primary choice change their mind after you pass away and decide not to become the guardian. This ensures continuity and is especially crucial if the primary guardian is no longer available, such as if they have passed away between the time the will is written and your passing.
Prepare Supporting Letter of Wishes
Where a will is a legally binding document that dictates who will become the guardian of a child, a letter of wishes is not. However, it provides an opportunity to outline your expectations and specific requests regarding how your child should be raised. This letter can include important guidelines to help the guardian in fulfilling your wishes. Examples of these wishes might include:
- The child's education including the type of school they should attend
- Religion you would like them to follow
- Ethical considerations (e.g. raised as a vegan)
- Hobbies the child participates in
Store the Will Safely
After drafting the will and letter of wishes, you should keep them together in a secure and accessible location.
Do not put the will in a safety deposit box as probate is needed to open this box and you cannot get probate without a will.
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Key Considerations When Choosing a Guardian
There are a few considerations that you’ll need to take into account when choosing a guarding including:
Trust and Compatibility
It is in the child's best interest that you ensure the guardian is a suitable choice. The key question you should ask yourself is ‘do they share my values and parenting style?’. If the answer is no, consider their parenting style, and the merits it brings to see if they are a viable option.
Practicality
You’ll need to work out how feasible it is for them to raise the child. You should consider aspects such as their location, financial situation and willingness on their part.
Some questions to consider:
- Do they have any children themselves? Do they want more? Or any at all?
- What is their housing situation? Will they be happy to move into your home?
- Where are they located? Are they happy to relocate if out of the area?
- What lifestyle do they have? Do they travel a lot personally or professionally?
Age and Health
Depending on the age of the child, you’ll need to factor in the age of the guardian. You’ll want to ensure that they will survive long enough to raise the child for long enough to avoid more upheaval in their life.
Their health should also play a role in your decision-making such as whether they can physically raise a child. If they are a grandparent already struggling to look after them for short periods, they might not be the best person to choose.
Financial Support
Whoever you name as a legal guardian in your will handles the child's welfare only. Anything financial falls to the named executor/trustee, who will act on your behalf.
You can assign both roles to the same person if you feel that person can handle the responsibility. You’ll need to allocate funds specifically toward the child's upbringing, which can be done through either a life insurance payout or a trust fund.
Avoiding Common Pitfalls
There are a few pitfalls that you should avoid when naming a guardian which are:
Conflicting Appointments
It is in the best interest of the child that both parents collectively agree on the guardian(s) named in each other's will or mutual will. If different guardians are named and not mutually agreed upon, both guardians will assume the role upon the parent's passing. This can cause friction when making life decisions for the child, which may result in going to family court to resolve.
Successor Guardianship
In your will, you cannot name successor guardians in the event your chosen guardian passes away whilst caring for your child. However, you can name another guardian should your chosen one pass away before caring for the child.
You can use your letter of wishes to recommend future legal guardians should your named guardian pass away afterward. But, the legal guardian is under no legal obligation to carry out these recommendations.
Legal Compliance
You’ll need to ensure that any guardianship appointment through the will is legal. This can be done by ensuring the will is signed, dated and witnessed by two individuals. It's recommended that you use a solicitor if you are including a guardianship clause in your will to avoid any custody issues upon your death.
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Frequently Asked Questions
Can I appoint more than one guardian?
Yes. If your chosen person is in a relationship you may wish to name their spouse as a guardian too. You can name up to 4 guardians in your will, so if your first choice declines the responsibility, someone else you have chosen can step up.
What happens if I don’t name a guardian?
The courts will determine the most appropriate person to become a guardian and appoint them. This could result in a former spouse and parent of the child assuming the responsibility when you didn’t want them to.
When does an appointment of a guardian take effect?
The guardianship takes effect upon the death of the parent or parents that named the guardian in their will(s). This doesn’t happen if one parent is still alive and has parental responsibilities.
Does an ex-partner automatically become the legal guardian?
When a child is born, the mother automatically has parental responsibility. The father only has parental responsibility if he is named on the birth certificate, married to the mother, or has a formal parental responsibility agreement. A legal guardian can only take over responsibility if no parent with parental responsibility is alive or able to care for the child.
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Find a Will Writer
When you appoint a guardian in your will, you are securing the future of your child and providing them with a stable and consistent future. As a result of its importance in your will, it's recommended that you use a professional will writer to ensure legal compliance.
Here at Compare My Move, we can connect you with up to 6 expert will writers in your local area. Simply fill out our online form to be matched with companies and save on your will writing costs.
Each will writer we work with is a member of one of the following:
Solicitors Regulation Authority (SRA)
Council for Licensed Conveyancers (CLC)
Law Society of Scotland (LSS)
Law Society of Northern Ireland (LSNI)
Chartered Institute of Legal Executives (CILEX)
The Institute of Chartered Accountants (ICAEW)
Institute of Professional Will Writers (IPW)
The Society of Will Writers (SWW)
