What if a guardian cannot act?

If the guardian you named in your will has died before you, is seriously unwell, has separated from a partner you named jointly, or simply feels unable to take on the responsibility when the time comes, their appointment under your will effectively cannot be carried out. The will itself does not automatically nominate anyone else unless you specifically named a backup.

This is a genuinely common scenario, since wills are often written years or decades before children reach adulthood, and life changes substantially in that time for almost everyone. It is one of the strongest reasons to revisit a will's guardianship provisions periodically rather than treating it as a one-off decision made once and never reviewed.

The simplest way to plan for this is to name a second, backup guardian in your will from the outset, someone who would step in if your first choice cannot or will not act. This is a straightforward addition and does not need to be complicated: simply state your first choice, and then a clearly worded backup in case the first person is unable or unwilling to act.

Choose a backup guardian using the same care as your first choice, someone who shares your values, has a genuine relationship with your children, and is realistically able and willing to take on the role, rather than simply the next most obvious family member by default.

If every guardian named in your will is unable or unwilling to act, and there is no surviving parent with parental responsibility, the decision about who cares for your children falls to the family court under the Children Act 1989. The court will consider the children's welfare as the paramount concern, taking into account the views of relatives, the children themselves if old enough, and any evidence of your own wishes, including anything set out in a letter of wishes.

This process can take time and, in some cases, involves disagreement between family members who each believe they are best placed to care for the children. It is a situation almost every parent would prefer to avoid, which is why building resilience into the guardianship clause of your will, rather than naming only one person with no backup, is worth the small extra effort.

A guardian appointment made when your children were babies may no longer make sense once they are teenagers, and a guardian's own life circumstances, marriage, divorce, ill health, moving abroad, can change substantially over the years your will remains in force. Build in a habit of reviewing your will every few years, or after any significant life event affecting you, your children, or your named guardians.

If a named guardian's circumstances change in a way that concerns you, for example a divorce that changes the household your children would move into, it is worth updating your will promptly rather than waiting for a scheduled review, since a guardianship clause only reflects circumstances as they stood when it was last updated.

Alongside the legally binding guardianship appointment in your will, many parents write a separate, non-binding letter of wishes explaining their reasoning, any particular routines or values they would like maintained, and who else in the family they would want involved in the children's upbringing even if not formally a guardian.

While not legally binding, a letter of wishes carries real weight if a court ever has to step in because no named guardian is able to act, since it gives a judge genuine insight into what you would have wanted, beyond the bare formal appointment itself.