Appointing a guardian for your children
A guardian is the person who raises your children if you are not there to do it. The part that catches people out is when that appointment actually starts.
Who can appoint, and when it takes effect
A testamentary guardian is the person you name in your will to take over raising your children if you die while they are under 18. A guardian who takes up the role gets parental responsibility, so they can consent to medical treatment, choose a school and make the decisions a parent makes. A parent can only make the appointment if they have parental responsibility, so if you are a parent without it, a guardianship clause in your will has no effect. The Act also lets an existing guardian, or a child's special guardian, appoint someone to take over from them.
The rule in England and Wales sits in section 5 of the Children Act 1989, and the timing is what surprises people. Your appointment does not normally take effect while the children's other parent is alive. If that parent has parental responsibility and survives you, the appointment sits dormant and takes effect only when the child no longer has a parent with parental responsibility, usually on that parent's death.
There are two exceptions. If a child arrangements order was in force naming you, and not the surviving parent, as a person the child was to live with, your appointment takes effect on your death even though the other parent is still living. The same applies if you were the child's only, or last surviving, special guardian.
Parental responsibility does not follow automatically from being a parent in every case. A mother who gave birth has it. Whether a father or a second parent has it depends on the circumstances, including marriage or civil partnership, being registered on the birth certificate, a parental responsibility agreement or a court order. If you are not certain you have it, check before you rely on a guardianship clause, because the appointment only works if you do.
Choosing someone: the practical test
The instinct is to name the person you love most. The more useful question is who could absorb your children into their life next week without it falling apart. Age, health, stamina and how many children they already have often matter more here than who you feel closest to.
Work through the detail. Where do they live, and would your children lose their school and their friends in the same month they lose you? Is there room in the house? Do they hold the values you want the children raised with, on religion, schooling and discipline? Would your children still see the rest of your family?
You can appoint one person or a couple acting jointly. If you name a couple, think about what happens if they later separate. Naming one of them, with the other as the substitute, avoids leaving that question open.
Ask them first, and name a backup
Nobody is obliged to accept. A guardian who does not want the role can disclaim it in writing, signed and made within a reasonable time of learning that the appointment has taken effect, which means after your death rather than in advance. If your first choice says no and there is nobody named behind them, who raises your children may have to be decided by the family court. That is the exact outcome the appointment was meant to prevent.
So ask before you write the name down. Give the real picture: how many children, their ages, anything about health or schooling that would shape the job. It is an awkward conversation, and easier than leaving the choice to a court.
Then name at least one substitute, to act if the first choice has died, cannot act or does not want to. If both parents are making wills, name the same people in both. Two parents who each appoint someone different can leave two guardians with equal standing and no agreement between them. Revisit the names after a divorce, a move abroad, an illness or a new child, and note that if you appointed your husband, wife or civil partner, divorce or dissolution revokes that appointment unless the will says otherwise.
Money is a separate job from care
Appointing a guardian does not hand them your money. A child under 18 cannot normally give a valid receipt for a legacy, unless your will expressly allows a parent or guardian to give one on their behalf, so what you leave is usually held on trust until the age you set. The people holding and spending it are your executors and trustees, not the guardian, unless you name the same people for both roles.
Decide that deliberately. One person doing both is simpler and spares the guardian asking permission for every pair of school shoes. Splitting the roles is a check on each other, and suits families where the obvious carer is not the obvious money manager. Either way, it is worth checking that the will says plainly whether the trustees can release income and capital for the children's maintenance, education and benefit, rather than leaving it to the default position.
Age matters too. Say nothing and the standard is 18. You can set 21 or 25 instead, so that a large sum does not land on an eighteen-year-old. How a trust is taxed depends on its terms and on when the money is paid out, and that is a question for a solicitor or a tax adviser, not for us.
Think about the first few weeks as well. Probate takes time, and money held in a trust outside the estate, such as a life policy written in trust, is paid to that trust's own trustees under that trust's terms rather than through the will. We do not advise on insurance or any other financial product, so if you have a policy, check who its trustees are with whoever arranged it, then decide whether they should be the same people as your will trustees.
If you name nobody
If you die leaving no surviving parent with parental responsibility and no guardian appointed, there is no automatic answer. Somebody has to apply to the family court, and the local authority may be involved while that is sorted out. Relatives may assume they would simply take the children in. They may have to ask a court first, and more than one of them may want to.
The appointment itself is short. It must be in writing, dated and signed by you, and a will that is dated as well as properly signed and witnessed meets that. You can do it in a separate signed document instead, but a will is harder to lose and is the document your executors read first.
Before you write a name down
Work through these before you settle on a name.
- Are you a parent with parental responsibility, or a guardian or special guardian? A parent without parental responsibility cannot make the appointment, and the clause would have no effect.
- Does the other parent have parental responsibility? If they do and they still have it when you die, your appointment stays dormant, unless a child arrangements order named you, and not them, as a person the children were to live with.
- Have you asked the person, and did they say yes without hesitating?
- Who acts if the first choice cannot or will not?
- Would the children have to change house, school and area, and can you live with that?
- Is the guardian also a trustee, or is someone else holding the money?
- At what age do the children receive what you leave them?
- If you have a life policy held in trust, do you know who its trustees are, and does that match who you have named in the will?
What a will cannot do here
This page is general information about how guardianship works in England and Wales, not legal advice on your own situation, and we are will writers, not solicitors. This is the part worth reading twice, because what people most want from a guardianship clause is often the one thing it cannot deliver.
- It cannot keep your children away from a surviving parent who has parental responsibility. Outside the two exceptions above, your appointment stays dormant while that parent is living. Even inside those exceptions it does not remove that parent's parental responsibility: the guardian would act alongside them, and the parent could ask the family court for a child arrangements order or to end the appointment. If that is the real worry, a will is the wrong tool. It is a family court matter, and one to raise with a solicitor while you are alive.
- It does not bind the court. Anyone with parental responsibility can ask the family court to end an appointment, the child can ask with the court's permission, and the court can end one of its own motion in family proceedings. The court decides on the child's welfare, not on your instructions.
- It does not reach past a child's eighteenth birthday. If a child has a disability and will need decisions made for them as an adult, that runs through the Court of Protection and needs specialist advice, not a guardianship clause.
- It cannot guarantee that a guardian who lives abroad will be allowed to bring the children there, or be recognised as their guardian by that country. Those are questions of immigration and of the law where they live.
- A letter of wishes about schooling, religion or contact with relatives is useful, but it is not legally binding on the guardian or on anyone else.
- We do not give financial or investment advice and we do not advise on insurance. Anything about a policy, a pension, or how a trust is taxed belongs with whoever arranged it, a solicitor, or a suitably qualified adviser.
- Use a solicitor, or a STEP practitioner, if you are separating or in a live dispute about the children, if a child needs a trust that protects means-tested benefits, if you want money held in a structured trust well beyond 18, or if you think someone may bring a claim against your estate. We are will writers, not solicitors, and if what you tell us points to a situation that needs one, we will tell you before we draft.
- This page is England and Wales only. Scotland and Northern Ireland are separate legal systems with their own rules on guardianship, so do not rely on this page there.
Common questions
Can I appoint a guardian without making a will?
Yes. In England and Wales the appointment only has to be in writing, dated and signed by you. A will is the usual place for it because it is signed and witnessed as the Wills Act 1837 requires, and it is the document your executors go to first.
Can I stop my ex from getting the children?
Not through a will. If they have parental responsibility and survive you, your appointment stays dormant and does not displace them, unless a child arrangements order naming you, and not them, as a person the children were to live with was in force when you died. Even then, the appointment does not strip your ex of parental responsibility. The guardian would act alongside them, and they could ask the court to end the appointment. Parental responsibility does not by itself decide where a child lives, so if you believe your ex would put a child at risk, that is a family court matter and one to raise now with a solicitor, not something a clause in your will can settle after you have gone.
Does the guardian get the money I leave the children?
No, unless you also appoint them as a trustee. Money left to a child under 18 is normally held by your trustees, who can release funds for maintenance and education. Making the guardian one of two trustees is one way to give the person doing the caring a say without leaving them to hold the purse alone.
Can I name a guardian who lives abroad?
You can name anyone you trust, wherever they live. Whether they could bring your children to live with them is a separate question of that country's immigration and family law, and worth checking with someone qualified there before you rely on it.
Start when you are ready
If you already know who you would name, a will is the usual place to make the appointment: our Family & Estate Will is £49 instead of £249, or £99 instead of £498 for two if you and your partner are doing it together. Offer ends 31 August. We are will writers, not solicitors, and we do not give legal advice.
Family & Estate Will £49, normally £249. Couples Will for you and your partner £99, normally £498. Offer ends 31 August.