A testamentary guardian is a person that you may appoint in your will to look after any minor children you have at the event of your death. A guardian can only be appointed for a child who is under the age of 18 years.
Who can appoint a testamentary guardian?
The person appointing the guardian must be:
- A parent of the child who has parental responsibility (PR); or
- Someone already appointed as a guardian for the child; or
- A “special guardian”
So a parent without PR for the child cannot appoint a testamentary guardian.
The guardian must be appointed in writing such as by a Will but there is no required form of wording that must be used.
The effect of appointing a testamentary guardian
A testamentary guardian is given parental responsibility (PR) in the event of the death of the person appointing them and has the same rights and responsibilities as a parent when it comes to a child’s health, welfare and education etc. A testamentary guardian must always act in the child’s best interests.
It is recommended that they are provided with guidance. This is usually by way of a side letter which is prepared at the same time as the parent’s Will(s) which sets out the details of the parent’s wishes for that child or children’s upbringing.
Who can be a guardian?
You can appoint anyone you wish to be a guardian for your child, as long as they are 18 or over. This could be a family member, a close friend or anyone else you feel is appropriate to look after your child in the event of your untimely death.
You can appoint more than one guardian, and sometimes it is useful to do so in the event that your chosen guardian is unable or unwilling to act although, suggested no more than two.
What happens if I do not appoint a guardian?
If you do not appoint a guardian to look after your child and no other surviving parent with PR exists, then the court will decide who to appoint as guardian for your child.
This may very well not be someone your child knows or is close to and could lead to disputes amongst your family.
Guardianship clauses in a Will
It is common for guardians to be appointed under the terms of a Will to make provision for the care and protection of your child if the worst should happen. Of course, when appointing guardians in a Will, it is important to note that they will only be able act as guardian should both parents with PR have died whether or not they are still in a relationship.
It is sensible for at least one of the guardians appointed in a will to also be an executor/ trustee of the will if you are leaving some or all of your estate to your child. This is because your guardians will know the day to day requirements of your child, and as trustees they will be able to apply money/assets held on trust for the benefit of your child as they see fit, for example, for his or her education, deposit on their first home, etc.
Divorced and separated parents
Usually, the surviving parent will have PR for the child. For unmarried partners, if a child was born after 1 December 2003, a father will automatically have PR if his name is registered on the birth certificate.
If the deceased parent appoints a guardian in his or her will, then this appointment will not take effect until the surviving parent with PR dies. This can be quite worrying if the surviving parent has little involvement in your child’s life or if your child is close to your chosen guardian and you would rather that he or she stays with them and again, this is why a letter of wishes is strongly advised when appointing guardians.
The court will always be able to consider whether any appointment of a testamentary guardian is in the best interests of the child concerned and may replace a guardian if it thinks that it is in the best interests of the child to do so.
If you have minor children, or are expecting…and wish to provide certainty that should the worst happen, they will be looked after as you intended then please do contact our Private Client Team for a no obligation meeting during which we will be able to discuss your circumstances and the options available to you and advise on the most appropriate structures for you and your family.