Appointing a Guardian

What is guardianship?

If you have dependants – usually children under the age of 18 or people with a physical or learning disability – then you may want to appoint a legal guardian to take care of those individuals should you pass away.

Doing so provides clarity and avoids dispute regarding the future of your dependents if you die, preventing a lot of distress for all who are involved.

A guardianship order is essentially a court appointment that enables a person (guardian) to take responsibility for the daily care and financial affairs of an individual if their parent or previous guardian was suddenly unable to do so.

When do you need a guardianship order?

People need a guardian when they lack the capacity to manage their affairs or make their own legal decisions surrounding things such as healthcare and finances.

If you have a child under 18-years-old or a dependant with any type of learning or physical disability, you should have a guardianship order in place in line with UK requirements as soon as possible.

How guardianship works in the UK

Guardianship is not always straightforward, but there is a general structure to the process. It generally includes the following steps:

• One or more people agree to be the guardian of your child/children if you die.

• They are appointed by you in your will through a solicitor.

• If you pass away and the individual is under 18 or lacks the mental capacity to make important decisions, the guardian will legally take over the responsibility.

Who can become a guardian?

Legal guardians must be over 18-years-old and have a direct interest in the person’s welfare and/or financial affairs.

Most people typically appoint close family members as their child’s guardian, but friends and healthcare professionals can also be appointed as long as they formally agree to the responsibility.

As you are able to appoint more than one guardian in the UK, it can be useful to spread the responsibility in order to suit the guardians’ traits. For example, one guardian could manage the child’s finances and another could take care of their daily upbringing and education.

It is also possible to appoint just one guardian while formally naming an alternate in case they are unable to fulfil their duty – whether they become ill, move away and so on. 

When deciding who you would like to appoint as a guardian for your children, you should consider:

• The person’s family structure, children and relationship status

• Their lifestyle, personality, health and age

• How financially stable they are

By contemplating such factors, you are ensuring that your child will be brought up accordingly, and as you wish, in your absence.

What powers do guardians have?

Once the legal process is complete, a guardian is then able to manage a person’s healthcare, education and day-to-day affairs should the donor die.

Guardians can also take control of a dependant’s finances, including bank accounts, pensions, property and tax, as well as any inheritance left to them. The guardianship order is usually in place until the person is able to look after their own affairs, typically after their 18th birthday.

The importance of guardianship

Having a guardianship order in place before you pass away is very important for a number of reasons, for example:

• It provides a smooth and simple transition for your dependants at such a difficult time.

• It avoids family conflicts regarding custody.

• The guardians agree beforehand and have the chance to discuss arrangements with you.

• You can put plans in place for their finances and care, perhaps through trusts.

More than anything, appointing a guardian gives you peace of mind that your children will be cared for by a person – or people – who you choose and trust completely.

How to set up a guardianship

In order to appoint a guardian for your children in the event of your death, a formal declaration must be included in your will. Therefore, when your child is born you should either create a will or upgrade your existing one to include a guardianship order, which can be done by using our will writing services. You should avoid delaying the creation of your will as it’s impossible to know what’s around the corner, so contact us today to write a will and appoint a legal guardian.

Do I have to accept guardianship?

If someone approaches you about being appointed as their child or dependant’s guardian, there is no legal obligation for you to accept. Regardless of how pleased you are to have been asked, you should be honest about your personal situation, including whether you would have the time to take care of a dependant. Being a guardian is a role filled with serious responsibility, so be sure to consider it carefully before agreeing to the appointment.

Legal guardian vs godparent: What’s the difference?

Becoming a child’s legal guardian in the UK is not necessarily the same as being a godparent, at least not in the eyes of the law.

Despite seeming somewhat similar to the role of a godparent, being a guardian means that you are legally required to take responsibility for the child by law. While godparents have a responsibility to provide moral and religious support to their godchild, they are not legally obligated to take control of the child’s affairs as a guardian would.

Being a godparent is a moral agreement, whereas being appointed as a guardian is a legal responsibility. Godparents are not automatically appointed as legal guardians, but they can be if the child’s current guardian (parent) chooses to nominate them.

What is guardianship for adults?

Guardianship orders are also available for adults that depend on someone else in their day-to-day lives. These adults typically require the help of others due to a mental condition or being unable to communicate and make decisions about their health and finances.

Guardianship for people with Alzheimer's

Under the Mental Health Act 1983, guardians are able to be appointed for adults with mental disorders in order to make decisions on their behalf. Guardians for adults can decide where the person lives, organise their healthcare and medical treatment and make decisions regarding their finances.

A local authority can be named as the guardian of an adult if they lack mental capacity, but families often prefer to appoint family members, close friends or even carers as guardians.

Special guardianship order

When both parents are still alive but are unable to take care of their child, a court can appoint a special guardian to take parental responsibility for that child.

Although most guardians are used in the case of both parents’ death, they can be called upon while the parents are still alive – for example, if they are overseas, in the army, in prison, become ill or disabled, or refuse responsibility for a particular reason.

Appoint a guardian today

Our partnered and specialist team is available to work with you to ensure that your children and dependants have a secure and indisputable future if you pass away.

With your family’s best interests at heart, we will help ensure you have a will that includes your guardianship wishes, which will provide you with peace of mind knowing that your children will be taken care of by a person of your choice and someone you trust.

If you want to know how to make someone a legal guardian in the UK, want to access our will writing services, trust funds or any related topic, get in touch with our team by completing our short contact form below.