‘Testamentary Guardianship’ refers to the process whereby a guardian is appointed for a child by someone in the event of their death.
Once this takes effect, the guardian will have the responsibilities and duties towards the child akin to that of a parent.
Who can appoint guardians?
Only the following can appoint guardians:
- A parent with PR for a child. A mother automatically has PR for her child when the child is born, but a father who is not married to the child’s mother does not automatically have it (section 2, CA 1989).
- A guardian (that is, an individual whose appointment as guardian has become effective).
- A special guardian.
- The court (specifically, the Family Division of the High Court).
When does Testamentary Guardianship take effect?
On the death of the testator, a person appointed as a testamentary guardian will obtain Parental Responsibility for the child concerned when either of the following conditions is met:
- the child has no surviving parent with Parental Responsibility for him; or
- a child arrangements order or residence order was in force which named the testator as the person with whom the child was to live.
If there is a surviving parent with Parental Responsibility for the child and there is no order for residence, Parental Responsibility will not automatically transfer to the guardian.
The rules are slightly different where a special guardian appoints a testamentary guardian.
If the testator was the child’s only (or last surviving) special guardian, the testamentary guardian appointment will take effect. This applies even if there is a parent with Parental Responsibility still living.
If there is another special guardian still living, the testamentary guardian appointment will not take effect.
What are the rights and responsibilities of a Testamentary Guardian?
Once a testamentary guardian is appointed, they will get ‘Parental Responsibility’ for the child. This is a legal term which grants the ability to have a say in important decisions affecting the child’s long-term care and upbringing.
Parental responsibility (PR) consists of “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property” (section 3(1), Children Act 1989 (CA 1989)). It enables a person with PR to make decisions about the child’s property and welfare (including but not limited to religious upbringing, accommodation, education and medical treatment)
In practical terms, Parental Responsibility means the power to make important decisions in relation to a child. This can include:
- determining the child’s education and where the child goes to school;
- choosing, registering or changing the child’s name;
- consenting to a child’s operation or certain medical treatment;
- accessing a child’s medical records;
- consenting to taking the child abroad for holidays or extended stays;
- representing the child in legal proceedings;
- determining the religion the child should be brought up with.
- Appoint a guardian in their will to care for the child in the event of their death
In addition to day-to-day decisions, which include:
- Activities that the child undertakes
- How the child spends their time.
- Routine discipline.
- Personal care for the child, such as washing, dressing, grooming and feeding
- Daily care and control of the child’s personal possessions and property
- Making and attending routine medical check-ups (for example, dental and optical appointments).
- Continuing the child’s prescribed medicine treatment
- Attendance at school functions and parents’ evenings
A common situation in relation to Family cases is when a parent believes that (on their death) placing a child in the care of the surviving parent who has parental responsibility would create a welfare issue for that child. Whilst it is possible for a parent to apply for a child arrangements order or residence order (during their lifetime) this may not be in place at the parent’s death.
An option would be for the parent to update their Will and include a guardianship clause, coupled with evidence as to why allowing the child to be placed under the care of the surviving parent would create a welfare risk for the child. While this in itself would not automatically appoint the guardian named under the Will, it would assist in giving evidential weight for an application being made to court for that guardian to be appointed as the child’s special guardian and provide some peace of mind that you have taken steps to try and protect your child’s welfare.
Special Guardianship can only be granted by a judge in a family court via a Special Guardianship Order (SGO). Becoming a Special Guardian gives that person overriding parental responsibility for a child (over any other people with parental responsibility) and the authority to make decisions in the best interests of that child, until the child reaches the age of 18.
Parental Responsibility ends automatically when the child reaches 18.
How Nelsons can help
Tom Glenister is a Senior Associate in our expert Wills and Probate team, advising on Wills, LPAs, administration of estates, including intestate estates, Grants of Probate, Powers of Attorney and Surrogacy Wills.
If you have any questions regarding the subjects in this article, please get in touch with Emma or another member of the team in Derby, Leicester or Nottingham on 0808 189 9643 or via our online enquiry form.
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