Legal Q&A: Testamentary guardianship
Coram Children's Legal Centre
Thursday, July 27, 2017
What is testamentary guardianship?
Testamentary guardianship refers to the process whereby a guardian is appointed for a child by someone in the event of their death. The guardian may be, for example, a close relative such as a grandparent or sibling. Once this takes effect, the guardian will have the responsibilities and duties towards the child akin to that of a parent. The process for appointing a testamentary guardian and the rights which are conferred is governed by section 5 of the Children Act 1989.
Who can appoint a testamentary guardian?
- A parent with parental responsibility
- A testamentary guardian
- A special guardian
How are they appointed?
A testamentary guardian can be appointed in a will or in writing, dated and signed by the person making the appointment. It can also be signed by someone else following the directions of the person making the appointment.
What are their rights and responsibilities?
Once appointed they will have parental responsibility for the child. The child can live with the testamentary guardian but there is not an automatic entitlement to have the child live with them. In the event of a dispute, an application to court for a child arrangements order or a special guardianship order is required to legally be recognised as the person with whom the child lives.
When does testamentary guardianship take effect?
On the death of the testator (the person who has made the will), a person appointed as a testamentary guardian will obtain parental responsibility for the child concerned when either the child has no surviving parent with parental responsibility for them; or a child arrangements order or residence order was in force that named the testator as the person with whom the child was to live. 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.
For more information, see Child Law Advice Service