Appointing A Guardian In My Will – Considerations For Parents In Their Estate Planning, With A Focus On Special Guardianship.

When preparing your Will, something you will often need to consider where you have responsibility for minor children is who would be responsible for taking care of them should you pass away while they remain under the age of 18.   

Appointing a guardian for your children

If you have children under the age of 18 (either biological, or formally adopted), something that should be considered is appointing a testamentary guardian under the terms of your Will. This will be a provision under the terms of your Will, confirming who would take care of your children in the event you pass away whilst they are still minors.  You can appoint more than one person and these people will then be known as your testamentary guardians. 

An important point to note here is that this provision will only come into effect in the event there is no other person with parental responsibility for your children. Parental responsibility is concerned with the care and upbringing of a child until they grow up, for example, making major decisions about the child’s life, such as where they should live or go to school. A child’s mother automatically has parental responsibility, whereas a child’s father will only have parental responsibility by virtue of being married to the mother at the time the child was born, or being registered on the birth certificate. Parental responsibility can also be acquired by the father in various other ways, such as by agreement or by way of a court application. 

If a mother passes away and has appointed testamentary guardians under the terms of her Will, but the father with parental responsibility is still alive, the testamentary guardian provision in the mother’s Will won’t come into effect. Appointing a testamentary guardian does not override parental responsibility, so it will be the last surviving person with parental responsibility whose testamentary wishes are taken into account when it comes to appointing a guardian for children.

Therefore, a person appointed as a testamentary guardian will only obtain parental responsibility, when there is no surviving parent with parental responsibility, or there was already a child arrangements order in favour of the testator, naming them as the person with whom the child was to live. The rules are slightly different where a special guardian appoints a testamentary guardian and this is explored below. 

There may be circumstances where you may consider it more appropriate for your testamentary guardians to care for your children, instead of a surviving parent with parental responsibility. If this is the case, we would recommend you seek legal advice as soon as possible.

Special Guardianship

Another circumstance where you may consider appointing testamentary guardians is if you have responsibility for a minor child under a Special Guardianship Order (“SGO”). 

An SGO is an order that appoints someone as a child's special guardian. A parent cannot be a special guardian and it is often seen as an alternative to adoption in cases where adoption may not be the best solution for a child who cannot live with their birth parents but still wishes to retain a link to them.  

An SGO confers parental responsibility on the special guardian. The special guardian’s parental responsibility may be exercised to the exclusion of any other person with parental responsibility (apart from another special guardian), including the child’s parents.

What happens in the event of the special guardian’s death?

If two special guardians are appointed, the surviving person becomes the sole special guardian. However, issues sometimes arise when there is only one special guardian and they die, with no arrangements having been made for the child’s care.

As a special guardian can delegate parental responsibility, it is advisable to make advance arrangements for the child’s care. Whilst the term "testamentary guardian" is often used, there is no requirement to make such an appointment in a Will, although this is often how the appointment is made. A written statement setting out the intention for the named individual to be the guardian of the child is sufficient, so long as this is dated and signed by the special guardian.

To assist the intended testamentary guardian, it may also be useful to include further information in this statement, for example:

• Important information about the child’s health and wellbeing;
• Their relationship with their birth parents and any arrangements for contact with them;
• The circumstances resulting in the SGO and details about where the SGO is stored; and 
• Reasons why the special guardian has chosen the named individual to be the child’s testamentary guardian. 

This is a useful roadmap for the testamentary guardian and so the more information that can be included, the more this is likely to assist the testamentary guardian when the time comes for them to take responsibility for the child. 

Whilst it is not a formal requirement, it may also assist to have the intended testamentary guardian countersign the written statement to demonstrate the joint intention of the special guardian and the testamentary guardian. 

The appointment of the testamentary guardian takes effect once all special guardians have died. The testamentary guardian appointment will not, therefore, take effect, if there is another special guardian still living. However, the appointment applies even if there is a surviving parent with parental responsibility.

How does a testamentary guardian differ from a special guardian?

A testamentary guardian appointed by a special guardian does not have exclusive parental responsibility. Whilst the appointment comes into effect, even if there is a surviving parent with parental responsibility, this is shared with any other persons with parental responsibility, for example, the child’s parents. If there is a dispute about the arrangements for the child, the testamentary guardian and anyone else with parental responsibility will need to engage in alternative dispute resolution to try to come to an agreement or seek further involvement from the court to resolve matters. 

Additionally, the Local Authority's duties under the SGO will no longer apply following the death of the special guardian. The testamentary guardian does not have an automatic right to the same level of support that the special guardian may have been receiving, including financial assistance.

How can we help? 

If you have minor children or responsibility for any minor children, please do get in touch and we would be happy to assist with advice surrounding your options, and implementation of that advice should you wish.