How to appoint a legal guardian
For most parents, the idea of no longer being around to look after the children is simply unimaginable. But life can be unpredictable, so knowing how to name a legal guardian could give you some reassurance that even if the worst happens, your children are in the best possible place. In this guide we’ll look at how to appoint a legal guardian in the UK.
What is a legal guardian?
A legal guardian is an individual who you grant the legal authority to care for your child in the event of your death (and the death of anyone else with parental responsibility). In the UK, a child is legally defined as a person under the age of 18.
There is no automatic legal right for a grandparent to be able to care for a child, even if the parents were to pass away. In order to grant a grandparent the legal right to look after your child in the event of your death, you would need to name them as a legal guardian when writing a will. If you’re unable to look after your child, a grandparent can apply for special guardianship which gives them the legal right to make day-to-day decisions, such as the child’s medical treatment and schooling.
Likewise, an older sibling won’t automatically count as your child’s legal guardian after your death unless specific arrangements are made in a will. A sibling can apply to become a legal guardian if they’re aged over 18.
A step parent does not automatically have legal responsibility for a child. They can apply for ‘parental responsibility’, which would give them the same legal rights and responsibilities as a biological parent. To do so, they would need to be married to the biological parent, and secondly, they would need to obtain the written consent of every other person with parental responsibility.
It’s worth noting that mothers automatically have parental responsibility, whereas fathers must be named on the birth certificate or married to the mother to have parental responsibility.
Read more about parental rights and responsibilities on GOV.UK.
What rights does a legal guardian have?
According to the Children Act 1989, once someone has parental responsibility for a child, they acquire “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”. So in essence, a legal guardian – or ‘testamentary guardian’ – has the same legal status as a birth parent. Generally, the law puts the emphasis on the rights of the child, rather than the parent, so we’ve covered some of the main legal guardian responsibilities below.
What responsibilities does a legal guardian have?
Caring for a child is a serious undertaking. But if you’re looking to spell out some of these duties when you appoint a legal guardian, how much is expected of them? Here are some of the key responsibilities the guardian will have in looking after the child:
- Providing a home
- Safety and wellbeing
- Choosing a school and their attendance
- Eating and nutrition
- Medical treatment decisions
- Financial support
- Any change of name
Additionally, before you appoint a legal guardian, you may want to write a letter of wishes to make other requests about how you’d like the child to be raised. This could include information about their religious upbringing, education, or hobbies.
‘The term ‘Parental Responsibility’ attempts to focus on the parent’s duties towards their child rather than the parent’s rights over their child.’
Confirm your eligibility
A legal guardian can only be appointed by someone who has parental responsibility for the child, such as a parent or special guardian, although a court can also rule on parental responsibility.
Choose your guardian
Think carefully about who you’d like to look after your child (or children) in the event you were no longer around. Do they live nearby, and would there be disruption to the child’s routine? Are they responsible adults, and are they part of an existing family network?
Write a will
You won’t be able to transfer parental responsibility while you’re alive, so you may wish to name a legal guardian in your will, at the very least, in a signed and dated document. This means that if you were to die, there is a clear legal instruction from you on what should happen to the children. You can also nominate a guardian outside of a will.
Why it’s important to appoint a legal guardian
If there isn't a nominated legal guardian, a court will ultimately determine who should look after the child in the event of the parents’ death. In theory, this could include periods in a foster home while the court decides on a permanent residence. Many parents would wish to avoid this outcome, so knowing how to appoint a legal guardian could be vital.