Testamentary guardianship

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.

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.

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.

To find services, information and support in your local area, including information about your local children’s services, use our Kinship Compass tool.

You can also contact the Kinship advice team for free, non-judgmental advice and information if you live in England or Wales.

Part of the content from this page was adapted from a blog post written by law firm Laurus.