Who should you appoint as guardians in your Will?

Jennifer Norman
24 November 2020

This is a serious consideration for any parent, guardian, or special guardian of a child under the age of eighteen.

Should it be the grandparents, who are close to the children, but who may struggle to cope with the demands of a stroppy teenager as they become increasingly old and frail, or should it be a trusted friend, or a sibling, who may have a family of their own to cope with?

A testamentary guardian is the person to whom parental responsibility will be granted immediately upon their death. The guardians are the people who will make decisions regarding the day to day welfare of the child concerned; they will make choices about the child’s living accommodation, education and medical treatment.

The appointment as guardian will only apply if all those who already have parental responsibility for a child are no longer living. A child’s mother automatically has parental responsibility for the child. If you are, or were married to the child’s other parent at the time of their birth and are named on the birth certificate, they will automatically have parental responsibility for the child. If you are unmarried, but did not register the birth jointly, then you shall need to ensure that your unmarried partner is named as guardian in your Will.

The rules differ slightly for those who are already appointed as special guardian at the date of their death. The last surviving special guardian’s choice of testamentary guardian will take precedence over anyone else who already has parental responsibility. This makes it especially important that the special guardian has made the appropriate appointment under the terms of their Will.

The role of guardian is not to be confused with the appointment of trustees under a Will. The role of trustee gives a person responsibility for managing the bereaved minor’s money and property.

It’s also important to note that a divorce will revoke the appointment of a guardian under a Will, so if a step-parent is appointed guardian of a child and subsequently divorces, the appointment will no longer be valid.

Whoever you decide to choose as guardian, you should obtain the consent of those you intend to appoint.