As a parent, you make important decisions for your children every day. You think about where they will live, their education, their health and the people who will help them grow up safely and happily.
There is one particularly important question that many parents understandably put off:
Who would care for your children if you were no longer here?
Making a Will allows you to record your wishes and appoint someone you trust to act as a guardian for your children. It is a relatively straightforward step, but one that can provide valuable reassurance for you and greater certainty for your family.
What is a testamentary guardian?
A testamentary guardian is someone appointed in a Will to take legal responsibility for a child following a parent’s death.
Once the appointment takes effect, the guardian normally acquires parental responsibility. This can give them the legal authority to make important decisions about matters such as the child’s:
- Home and everyday care
- Education
- Medical treatment
- Religious and cultural upbringing
- Travel and holidays
The appointment should be included clearly and correctly in your Will.
Why is appointing a guardian important?
If you do not appoint a guardian, it does not necessarily mean that your children will be placed in care. However, if no parent or other person with parental responsibility is able to care for them, relatives may need to take legal steps or apply to the court.
Different members of the family may also have different opinions about what should happen.
A properly drafted Will provides clear evidence of the people you trusted and wanted to care for your children. Although a court must always consider the child’s welfare, your written wishes can be extremely important.
Making the decision in advance can reduce uncertainty, disagreement and additional distress for your family at an already difficult time.
Does the appointment always take effect immediately?
Not necessarily.
In England and Wales, the position can depend on whether another parent or person with parental responsibility is still living and on any existing court orders concerning the child.
For example, if the child’s other parent survives and has parental responsibility, that parent’s legal responsibilities will normally continue. The guardian appointed in your Will may not immediately acquire parental responsibility.
This is one reason why parents should receive advice based on their actual family circumstances—particularly where parents are separated, there is a blended family, a step-parent is involved or court orders are already in place.
Who should you choose?
Parents often begin by considering close relatives, but a family relationship alone does not necessarily make someone the right choice.
You may want to think about:
- The person’s relationship with your children
- Their values, temperament and approach to parenting
- Their age, health and personal circumstances
- Where they live
- Whether your children could remain together
- The effect of moving home or changing school
- Their relationship with both sides of the family
- Their willingness and practical ability to take on the responsibility
- Any religious, cultural or language considerations that matter to your family
The person who feels like the most obvious choice may not always be the person best placed to take on the role.
Speak to your proposed guardian
Before naming someone, have an open and honest conversation with them.
They need to understand what you are asking and have an opportunity to consider the emotional and practical commitment involved. Their circumstances could also change, so it is sensible to revisit the conversation when you review your Will.
You can appoint more than one guardian, although you should consider whether the people concerned would be able to make important decisions together.
It is also sensible to name a substitute guardian in case your first choice dies, becomes unwell or is no longer willing or able to act.
Guardians and money are separate issues
A guardian does not necessarily need to be the person who controls the money left for your children.
Your Will can appoint trustees to manage your children’s inheritance until they reach the age you specify. The trustees can use the funds for appropriate purposes, such as housing, education and everyday care.
Some parents appoint the same people as guardians and trustees. Others prefer to separate the roles, creating a degree of independent oversight. The right arrangement depends on the people involved and the needs of your family.
Your Will should also consider whether enough financial provision has been made to help the guardian care for your children.
Should you write a letter of wishes?
Alongside your Will, you can prepare a letter explaining how you would like your children to be cared for.
It could address matters such as:
- Education and schooling
- Religious or cultural upbringing
- Important family relationships
- Contact with grandparents and other relatives
- Medical or additional support needs
- Activities, routines and interests
- Your values and hopes for your children
A letter of wishes is not usually legally binding, but it can provide valuable guidance. Unlike the Will itself, it can also be updated relatively easily as your children and circumstances change.
When should you review your choice?
You should review your Will and guardian appointments after significant changes, including:
- The birth or adoption of another child
- Marriage, separation or divorce
- Moving to a different part of the country
- A guardian’s circumstances changing
- A breakdown in an important relationship
- A change in your child’s health or support needs
- The death or serious illness of a guardian
Even without a major change, periodically checking that your arrangements remain suitable is a sensible precaution.
Personal advice makes a difference
An inexpensive online Will may appear straightforward, but family arrangements are not always straightforward.
The correct wording and the effect of a guardian appointment can depend on parental responsibility, previous relationships, existing court orders, stepchildren and the way your children’s inheritance will be managed.
At Do It Legally, we take time to understand your family, explain the available options and prepare a Will that reflects your particular wishes.
Our senior lawyer has 30 years’ legal experience, including experience of varied family arrangements, blended families, overseas assets and Islamic Wills.
Making your Will with Do It Legally
Our fixed-fee Will-writing services currently cost:
- In-person service: £250 for one person or £350 for a couple
- Remote service: £150 for one person or £250 for a couple
We can meet you in Brighton & Hove or provide the service remotely. Your fee is agreed in advance.
If you would like to discuss appointing guardians, protecting your children or making or reviewing your Will, contact Do It Legally. It costs nothing to ask whether we can help.
Telephone: 01273 011245
Website: doitlegally.co.uk
Appointments: Brighton & Hove or remotely
This article provides general information about the law in England and Wales. Individual circumstances differ, and specific advice may be needed.