Who Would Look After Your Children? Naming a Guardian in Your Will

If you have children, one question matters more than anything else a Will can answer: if the worst happened, who would raise them?

Many parents assume the answer is obvious - a grandparent, a sibling, a close friend. And where one parent dies, the surviving parent with parental responsibility simply carries on. The gap opens when there is no parent with parental responsibility left: then no relative or family friend has automatic legal authority to step in, whatever the family expects. In practice, family often rally round informally - but informal care does not itself give the carer parental responsibility, and a formal appointment may be needed to put that authority in place. Naming a guardian in your Will spares your family that uncertainty.

Naming a guardian in your Will is how you make your wishes count. It is straightforward to do, and this post explains how it works in each part of the UK.

What appointing a guardian means

A guardian appointed in a Will (sometimes called a "testamentary guardian") takes on parental responsibility for your child - the legal bundle of rights and duties that lets someone make decisions about schooling, medical treatment, religion and day-to-day care.

A guardian does not automatically manage your child's money. Money you leave for children is usually held in a Trust until they are old enough, managed by Trustees you name separately - and it is common for guardians and Trustees to be different people, a healthy check between care and cash.

England and Wales

In England and Wales, guardianship appointments are governed by section 5 of the Children Act 1989.

• Who can appoint: a parent with parental responsibility, an existing guardian, or a special guardian.

• How: in writing, dated and signed. A Will is the usual route, and a properly made Will automatically meets the signing requirements.

• When it takes effect: the part that surprises people. If the other parent also has parental responsibility and is still alive, your appointment does not take effect on your death - it takes effect only when the child no longer has a living parent with parental responsibility. The exceptions: a child arrangements order naming you as a person the child lives with was in force immediately before your death, or you were the child's only or last surviving special guardian - then it takes effect on your death. Once in effect, an appointment runs until the child is 18. For most families, both parents naming the same guardian in their Wills is the safest pattern.

• Two or more guardians can be appointed jointly, and you can name substitutes in case your first choice cannot act.

If nobody has been appointed and no parent with parental responsibility survives, a court can appoint a guardian where one is needed - but it chooses without your knowledge of your children and your family.

One trap worth naming for parents: you can only appoint a guardian if you have parental responsibility (existing guardians and special guardians can also appoint a successor). Mothers have it automatically. Fathers usually do too - but an unmarried father who is not named on the birth certificate, and who has not obtained parental responsibility by agreement or court order, does not. Sorting out parental responsibility then comes first.

Scotland

Scotland's rules sit in section 7 of the Children (Scotland) Act 1995 and differ in one important way.

• A parent can appoint a guardian in writing, signed - typically in a Will. The appointment takes effect on the parent's death, even if the other parent survives with parental rights and responsibilities; the guardian's responsibilities then sit alongside the surviving parent's.

• The appointment only takes effect if the guardian accepts it (expressly, or by acting as guardian).

• A guardian can themselves appoint a further guardian in their own Will.

• Age works differently here: parental responsibilities and rights in Scotland apply while a child is under 16 (guidance continues to 18), so a Scottish guardian's role covers the younger years.

Northern Ireland

Northern Ireland's framework (the Children (Northern Ireland) Order 1995) closely follows England and Wales: a parent with parental responsibility can appoint a guardian in writing, and the appointment generally takes effect only when there is no surviving parent with parental responsibility.

Because the detail differs across the three jurisdictions, a Will written for one part of the UK may need adjusting if you move - another reason an occasional review earns its keep.

How to choose

The choice itself is the hard part. Questions worth working through:

• Would your children already know and trust this person?

• Do they share your values on the things that matter to you - education, faith, money, lifestyle?

• Are they young enough, and settled enough, to see your children through to adulthood? (Grandparents are a loving instinct, but think about the practical years ahead.)

• Do they live nearby, or would your children have to move schools and leave friends?

• Have you asked them? A guardian can decline, so the conversation matters - and it is kinder to have it now than to leave them a surprise.

• Have you named a backup, in case your first choice cannot act when the time comes?

Some parents also leave a short letter of wishes alongside the Will - not legally binding, but a chance to record your hopes and the small things only you know about your children. If you would like the guardian to have financial help with the costs of raising your child, make sure the money side is actually provided for, usually through a Trust in the Will.

Review it as life changes

A guardian named when your children were toddlers may be the wrong choice at 15. Divorce, remarriage, a move abroad, or changes in your guardian's own life are all reasons to revisit it. Like the rest of your Will, it deserves a check every few years.

If you are not sure your current Will covers guardianship - or you have been meaning to make one since the children arrived - start with our free AI Will Check at www.yourwillsteam.org.uk, or call us on 0330 043 7544 for a short chat about what your Will needs to say.