Testamentary Guardianship: Protecting Minor Children
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Jonathan Jonas
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Why Testamentary Guardianship matters for minor children
Appointing a legal guardian for your child in your Will may be one of the most important steps you will ever take, ensuring they are protected and cared for should the worst happen.
If a parent or carer dies and no one else has parental responsibility, a child under 18 will not be left unprotected. However, who takes on the formal role as the child’s guardian depends on the circumstances. Ideally, the parent will have left a Will appointing a Testamentary Guardian, but the law also provides for the appointment of a Guardian if:
- The named Guardian has died or is unwilling/unable to act.
- No Testamentary Guardian was appointed.
- The parent died without leaving a valid Will or other written deed appointing a Guardian.
The role of a Guardian is to protect and care for the child by providing a safe, stable home environment, making best-interests decisions regarding healthcare and education, and making other important legal decisions for the child. If a Guardian is not acting in the child’s best interests e.g., if the child is being neglected or abused – the court can remove and replace them.
Testamentary Guardians
A parent or carer with PR can appoint a Testamentary Guardian in their Will for a child who is still a minor when they die. If you already have a Will, you can make a new Will to include the appointment of a Testamentary Guardian (or simply amend it using a Codicil to make the appointment).
Usually, a close relative or friend will be appointed as a Testamentary Guardian (there can be more than one), but it can be anyone who is an adult and has capacity. But it’s important that you choose wisely – someone you know and trust to act in the child’s best interests, and that you discuss the appointment with them to ensure they will be willing to take on the role.
It is also prudent to include a ‘letter of wishes’ with the Will setting out details about the child’s likes, interests, needs, etc. to assist the Guardian in their vital caring role.
Note that if the named Testamentary Guardian is unwilling or unable to take on the role, they will have the legal right to appoint a new guardian for the child. They will be required to formally disclaim the appointment within a reasonable time period, in writing and appoint a new Guardian (sections 5-6 of the Children Act 1989).
Importantly, a Testamentary Guardian clause only takes effect if no one else has PR. This means that if the child’s parents are separated, a surviving parent who has PR will be legally entitled to care for the child.
The implications can be particularly concerning in circumstances where the child has little to do with the surviving parent, or if they don’t enjoy a good relationship. If this leads to a dispute after your death, it is possible for the court to remove the surviving parent’s PR and appoint a Guardian.
Appointing a Guardian
If there is no Guardian appointed on the death of the parent, the court can make an appointment under section 5 of the Children Act 1989. But it will only do so having considered the child’s welfare and best interests (taking into account the list of factors under section 1 of the Children Act 1989).
The court can appoint a Guardian under section 5 of the Children Act in the course of family proceedings, even if it has not been formally asked for, which provides an even greater level of protection for vulnerable children.
How we can help
At Osbornes Law, our experienced family lawyers can advise on every aspect of appointing a Guardian, ensuring everything is clearly documented and legally effective. If you’re concerned about the future care and responsibility for a child in the event of a parent’s death, or you need advice in relation to the appointment of Testamentary Guardians, consider taking expert legal advice. You can contact our specialist children team by:
- completing our online enquiry form;
- or calling us on 020 7485 8811
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The team is experienced in handling matters where there are allegations of abuse and non-accidental injury, as well as situations where children's welfare is at risk due to parents' substance misuse or mental health issues.
The family practice at Osbornes Law offers substantial expertise in public law, advising on care proceedings, special guardianship orders and adoption, among other areas.
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The firm handles disputes related to child arrangements orders and international relocations, as well as work related to adoption and surrogacy agreements.
Osbornes Law has an established family team offering a range of expertise in private children law work.
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Osbornes are one of the few firms in London that are able to offer a high level of expertise across the family law spectrum, whether children or finances or public or private law.
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Lisa pepper heads the Mediation team and she is often mediating for high-net-worth individuals in both financial and private children matters.
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Osbornes‘ family team is headed up by Mark Freedman, a mediator and fighter who will get the job done on both complex financial matters and international children cases.
A market leader across public law, international cases, financial and children work.
The team is experienced in handling matters where there are allegations of abuse and non-accidental injury, as well as situations where children's welfare is at risk due to parents' substance misuse or mental health issues.
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Bridget Thompson is a public law specialist noted for her extensive practice in matters involving alternative families and adoption. An interviewee observes: "She's a fighter, she's clever, and she understands all aspects of a case."
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