Parents typically want to be sure that in the possible (though unlikely) event of their both dying before their children reach 18, people they approve of will take care of the children. Appointing guardians to do this gives the parents peace of mind. Normally appointments are straightforward but difficulties can arise, in particular over:
- Providing for changes in the circumstances of an individual after they have become a guardian.
- Ensuring that valid appointments of guardians are in place for children whose parents have divorced and remarried.
Guardians can only be appointed for children under 18 (minors) (sections 5 and 105(1), Children Act 1989 (CA 1989)). References to children in this note are to minors.
A guardian has parental responsibility (PR) for the child (section 5(6), CA 1989). This means that the guardian can make important decisions about the child’s life in areas such as medical treatment and education. A person who does not have PR, but who has the care of a child, has only a limited legal right to do what is reasonable in all the circumstances to safeguard or promote the child’s welfare (section 3(5), CA 1989).
If both parents of a child die without appointing guardians, only the court can appoint a guardian. If the parents simply agree informally with friends and relatives who will look after the child if they die, nobody will have PR for the child unless:
- The court appoints a guardian.
- The court makes an adoption order.
- A step-parent acquired PR while married to one of the parents.
- The child is living with an individual who is named as the person with whom the child is to live under a child arrangements order (CAO).
- An individual is named in a CAO as the person with whom the child is to spend time or otherwise have contact, but not as the person with whom the child is to live, and the court has provided for the individual to have PR in the order.
- The child is the subject of a special guardianship order.
- The child is the subject of a care order or an emergency protection order.
An appointment of a guardian takes effect on the death of the person who made it (appointor) only if either of the following applies:
- After the appointor’s death, no parent has PR for the child. (It does not matter that a person other than a parent has PR.)
- Immediately before the appointer’s death:
- a CAO was in force in which the appointor was named as a person with whom the child was to live (unless the order was also made in favour of a surviving parent of the child), or
- the appointor was the child’s only (or last surviving) special guardian.
If the only reason that the appointment does not take effect on the appointor’s death is that there was a surviving parent with PR (that is, the child was not living with the appointor under a CAO and the appointor was not the child’s only or last surviving special guardian), the appointment takes effect when the child no longer has a surviving parent with PR (section 5(8), CA 1989).