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Who is the Legal Guardian of a Child?

View profile for Shelley Wales
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A legal guardian is someone who has the legal authority to take care of a child should anything happen to the parents. A parent of a child is not normally considered a guardian, though the responsibilities may be very similar. Typically, a guardian is someone (often a family member) who a parent has named in their Will as the person who they wish to care for and be responsible for their child should the parents die before the child reaches the age of 18.

If you do not have a Will, and both parents die, a family member or close family friend may apply for a Special Guardianship Order.  Making a Will is an important step in ensuring your children are cared for per your wishes should you die before they reach the age of 18.

How do I appoint a Legal Guardian for my Children?

To appoint a legal guardian for your child you must name them as your chosen guardian in your Will. Before doing this, you will need to approach the people you would like to appoint as guardians to find out whether they are willing and able to take on this responsibility. You may also wish to appoint alternative guardians, who will take their place if your intended guardians pass away.

What is a Special Guardian?

If you do not specify a guardian in your Will, or do you not have a will when you die, then an individual can apply to be a Special Guardian. A Special Guardian is usually someone with a close relationship to the child, such as a family member, former foster carer, or family friend. They need to apply to the court which will consider their suitability and the child's needs, based on a report from the local authority.

Special Guardianship is a formal Court Order which places a child or young person with someone permanently and gives this person parental responsibility for the child. This could be a grandparent, close relative or a family friend.

Special Guardianship means that the child lives with people who have been granted a Special Guardianship Order. This means that the Special Guardian will have Parental Responsibility for the child until they are grown up. If the child was cared for by the local authority before the Special Guardianship Order was granted, they will no longer be the responsibility of the local authority and full responsibility (parental responsibility) will be with the person(s) who have successfully been granted Special Guardianship of the child. The order usually lasts until the child is 18 years old.

You must have Parental Responsibility to appoint a Guardian in your Will

You may only appoint a guardian for a child in your Will if you have 'Parental Responsibility' in respect of the child. Parents will usually share Parental Responsibility and therefore the naming of a guardian should be included in the parent’s Wills. On occasions, Parental Responsibility will reside with a Guardian who has either become the Guardian following the death of the child’s parents or been granted parental responsibility via a successful application for Special Guardianship.

A mother will automatically acquire Parental Responsibility on the birth of the child, as will a father if he was married to the mother at the time of the child’s birth. A father (when unmarried to the child’s mother) may acquire parental responsibility by being registered on the child’s birth certificate (for births after 1 December 2003), or by way of a parental responsibility agreement or court order.

What if the Father does not have Parental Responsibility?

It should be noted that where the father does not have parental responsibility and the mother has named a guardian in her will, that when the Guardian has been appointed, the appointment of the guardian does not prevent the other parent (usually the father) from challenging the appointment and making an application to the court for a Child Arrangements Order.

Why you should appoint a Trustee as well as a Guardian.

Many people choose to appointment a Trustee as well as a guardian. Since the guardian will be taking care of your child’s finances until they are 18, it is advisable to also appoint a trustee who is not related to the guardian e.g. a solicitor or accountant. Doing so will help to provide objectivity and safeguard against conflicts of interest. It will also provide the guardian with some support in handling the financial and legal aspects of a trust.

How do I get in Touch?

If you are needing advice regarding Child Arrangements Orders, Guardianship, or Trustees, then please do not hesitate to contact our team. Making a Will is the easiest way of appointing a Guardian. If you need a Will, or with to amend and existing Will, than we can assist here also.

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About Shelley Wales

Shelley brings over 20 years of experience to Thornton Jones and has extensive experience in dealing with disputes relating to matters such as where a child should live, how much time should a child spend with each parent, preventing a parent from doing something or requiring a parent to do something, moving abroad with a child, and change of a child’s name.