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Guardian

Also known as: Legal Guardian, Appointed Guardian, Testamentary Guardian

Definition

A guardian is a person you legally appoint in your will to care for your children if you die before they turn 18, giving them full parental responsibility—the same legal authority you currently have.

Choosing the right guardian is one of the most important decisions you'll make as a parent, protecting your children's future if the unthinkable happens.

What Does Guardian Mean?

Under Section 5 of the Children Act 1989, any parent with parental responsibility can appoint another person to be their child's guardian in the event of their death. When you appoint a guardian, you're giving them parental responsibility—all the rights, duties, powers, and authority which by law a parent has in relation to their child. This means they can make all important decisions about your children's lives, including healthcare, education, where they live, and their day-to-day care. It's a formal legal appointment, not just asking someone to informally "keep an eye on the kids."

The appointment must be made in writing, dated, and signed—either in your will or through a separate document. You can appoint one to four guardians, though most parents choose two (often a couple) to share the responsibility. The person must be over 18 and willing to accept the role. Sarah and James, married with two daughters aged 6 and 3, appointed Sarah's sister Emma and her husband David as joint guardians in their wills. They also named James's brother Michael as substitute guardian in case Emma and David cannot serve when needed.

Crucially, if you're married or in a civil partnership, your guardian appointment only takes effect if both parents die while the children are under 18. If Sarah dies in a car accident but James survives, he continues raising the children normally—Emma and David's appointment doesn't activate. Only if both Sarah and James die would Emma and David become the girls' legal guardians. For single parents, the situation differs. Claire is a single mother with sole parental responsibility for her 10-year-old daughter Lily. If Claire dies, her appointed guardian (her brother Michael) immediately takes on parental responsibility because there's no other parent with parental responsibility.

Guardians are responsible for your children's care and upbringing but not necessarily their finances—that's the executor or trustee's role. Children under 18 can't inherit directly, so any inheritance is held in trust. You can appoint the same person as both guardian and trustee, or split the roles if you trust someone more with childcare than financial management. If you don't appoint a guardian and both parents die, the courts will decide who raises your children—and it might not be the person you would have chosen. Your children could potentially be taken into temporary care while the court makes this decision.

Common Questions

"Do I need to appoint a guardian if I'm married and my spouse is still alive?" Yes, you should still appoint a guardian even though your spouse will automatically continue caring for your children if you die. The guardian appointment only takes effect if both you and your spouse die while your children are under 18. Without this, the courts would decide who raises your children.

"Can I just make my child's godparent their guardian, or do I need to do something legal?" Being a godparent carries no legal authority whatsoever—it's a moral and religious role only. To give someone legal responsibility for your children, you must formally appoint them as a guardian in your will. Your child's godparent can also be their legal guardian, but you must make the formal appointment for it to have any legal effect.

"What's the difference between a guardian and the person who manages my children's inheritance?" A guardian is responsible for your children's care, upbringing, education, and welfare—essentially stepping into your parenting role. The person who manages your children's inheritance is the executor or trustee, who controls the money held in trust until they're old enough to inherit. You can appoint the same person for both roles, or split them between different people.

Common Misconceptions

Myth: If I name my sister as godparent at the christening, she'll automatically get my children if I die.

Reality: Godparents have absolutely no legal rights or responsibilities under UK law. Appointing a godparent is a religious or moral gesture, not a legal one. If you want your sister to care for your children if you die, you must formally appoint her as a guardian in your will, using a proper guardianship clause that complies with Section 5 of the Children Act 1989.

Myth: Once I appoint a guardian in my will, they'll take care of my children if anything happens to me.

Reality: If you're married or in a civil partnership, your guardian appointment only takes effect if both parents die while the children are under 18. If you die but your spouse survives, they continue caring for the children as normal—the guardian doesn't step in. The guardianship clause is a safety net for when no parent with parental responsibility remains.

Understanding Guardian connects to these related concepts:

  • Minor: Guardianship applies only while children are minors (under 18 in England and Wales), ending automatically when they reach adulthood.
  • Parental Responsibility: Only those with parental responsibility can appoint guardians, and appointed guardians acquire full parental responsibility for the child.
  • Godparents: Godparents have no legal authority, unlike guardians who have full parental responsibility—these are separate roles.
  • Trust for Minors: Guardians care for children's welfare while trustees manage their inheritance, addressing different aspects of protecting children.
  • Single Parent: Guardianship is especially critical for single parents as it takes immediate effect upon their death with no surviving co-parent.
  • Wills for New Parents: Understanding guardian appointments is essential when writing your first will as a parent.
  • How to Choose Guardians for Your Children: Learn the practical steps for appointing guardians effectively and choosing the right person for your children.
  • Single Parent Wills: Single parents need to understand that their guardian appointment takes immediate effect, making it critically urgent.
  • Wills for Blended Families: Blended families face complex guardian considerations when biological and step-parents have different parental responsibility levels.
  • Updating Your Will After Divorce: Divorce changes parental responsibility dynamics and may require updating your guardian appointments to reflect your current wishes.

Need Help with Your Will?

Appointing a guardian is one of the most important protections you can provide for your children. WUHLD's guided platform walks you through choosing and appointing guardians with clear, compassionate guidance.

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Legal Disclaimer: This glossary entry provides general information about UK legal terminology and does not constitute legal advice. For advice specific to your situation, consult a qualified solicitor.