Learn the practical steps you need to take and find links to more advice and support for after a death.
Testamentary guardianship
Information for kinship carers about testamentary guardianship: the process of appointing a guardian for a child should their parent or carer die.
This advice applies to: England and Wales
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What is testamentary guardianship?
A testamentary guardian is a person that you appoint in your will to care for a child should you die. You can set out the caring arrangements in your will or in writing. Once appointed, a testamentary guardian takes on full parental responsibility for the child.
Parental responsibility
Parental responsibility (sometimes called PR) is the rights, duties, powers, responsibilities and authority which a parent or guardian has in relation to a child and his or her property.
Who can appoint a testamentary guardian?
Guardians can be appointed by a court or privately by someone who already has parental responsibility for the child. This includes:
- a parent with parental responsibility
- kinship carers with special guardianship orders
- kinship carers who have a child arrangements order where there is no surviving person with parental responsibility
Informal kinship carers who do not have a legal order for the child they care for are unable to appoint a testamentary guardian.
You can appoint a guardian by writing a will, or simply by putting your wishes in a signed document.
Why do I need to appoint a guardian?
It is important to appoint a guardian to look after the child you are caring for, should you die. It means that you can make sure your child will be looked after by someone you trust. You should always make sure that the person you’d like to appoint is happy to take on the role of guardian, as they have a right to say no to being appointed a guardian.
If you don’t appoint a guardian for the child you care for, courts will decide on a child’s legal guardian in the event of your death. The person appointed may not be who you would’ve chosen, which is why it’s very important to put your preferences in writing.
How to choose your testamentary guardian
There are some important things to consider when choosing your testamentary guardian. You should:
Come to an agreement
If you share parental responsibility with someone else, you should try and reach an agreement on who to appoint as testamentary guardian. If there isn’t an agreement between you, then the court can decide who is in the best position to care for the child.
Choose someone suitable
Your nominated testamentary guardian must be over 18 when you appoint them, and they need to be able to care for your child until they’re an adult. They will need the time and ability to care for your child and any of their own into adulthood.
Think about stability
Consider whether your chosen guardian is local to you – would appointing them involve a move? Choosing someone local could avoid upheaval. You may also want to think about existing relationships and choosing someone the child in your care knows and trusts.
When does testamentary guardianship end?
Guardianship ends automatically when the child reaches the age of 18 or if the sole guardian dies while the child is under 18. A court can also end testamentary guardianship, following an application from anyone with parental responsibility, or the child themselves.
Get specialist legal advice
It may be useful to get legal advice when appointing a testamentary guardian. The following organisations offer legal help and advice for families.
In addition to these resources, read more about getting legal help as a kinship carer.
Provides specialist legal advice for grandparents.
Free, confidential advice to families dealing with children’s services. They offer online advice, forums, a free telephone advice line and web chat service.
Helpline for legal advice, specialist advice and information on child, family and education law, as well as online resources.
Support from Kinship
Here at Kinship, we offer a range of free support for all kinship carers, including workshops, online advice and information, and support groups.
Contact the Kinship advice team to speak to an adviser or book an appointment.
Find services, information and support in your local area using our Kinship Compass, including information about your local children’s services.
Part of the content from this page was adapted from a blog post written by law firm Laurus.
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