Appointing a Guardian in Your Will

Appointing a guardian in your will is a legal step under section 5 of the Children Act 1989. It names the person or people you want to take on parental responsibility for your children if you die. Married parents and mothers automatically have parental responsibility; fathers who were not married to the mother at the birth may not have it automatically, though it can be acquired in several ways, including being named on the birth certificate since December 2003.

It is important to understand that this is different from simply naming someone as a favourite relative in conversation. The appointment needs to be made in the will (or in a separate signed and dated document) to have legal effect, and it should name the guardian clearly.

A common misunderstanding is that appointing a guardian in your will means they take over the moment you die. In fact, if the other parent is still alive and has parental responsibility, they normally continue to have parental responsibility and your appointed guardian does not usually take effect immediately.

Broadly, a guardian you appoint takes effect where there is no one else with parental responsibility for the child (for example, if you are a single parent, or if both parents have died), or where you had a child arrangements order in force immediately before your death naming you as the parent the child was to live with. This is a simplified summary of a legally technical area, and if your family situation is unusual it is worth checking your specific position.

There is no perfect candidate, but useful questions include whether the person shares your values and approach to bringing up children, whether they are willing and realistically able to take on the responsibility, and whether their own life stage and circumstances make it practical, for example their age, health and existing family commitments.

Always ask the person before naming them. It is also sensible to name a reserve guardian in case your first choice is unable or unwilling to act when the time comes, and to talk to your children's other parent so you agree an approach together where possible.

Appointing a guardian deals with who looks after your children day to day. It does not automatically mean that person controls any money you leave for the children. That is usually managed separately by the executors or trustees of your will, who may or may not be the same people as the guardian.

Some parents deliberately separate the two roles, for example appointing a sibling as guardian but a different, more financially experienced person as trustee, so that money matters and day-to-day care are not concentrated in one person.

If you are an unmarried father without parental responsibility, if there is a dispute or difficult relationship with the other parent, or if a child has additional needs that mean guardianship arrangements need to be more carefully structured, it is worth speaking to a solicitor to check the appointment will work as intended.

For most families, a straightforward guardian appointment made as part of a will is enough to give real peace of mind and to make clear who you want to step in if the worst happens.