How to choose legal guardians for your children

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Lots of people think that custody of their children automatically goes to next of kin, like a mother or sister. Unfortunately, this isn’t how it works. If a child has no living parent and no guardians have been appointed, then anyone can make an application to the court. A judge then decides who gets custody. But what if this isn’t the person you would have wanted?

Crikey. So who can be a guardian?

You can nominate any adult to take care of your child in your will, but it’s usually a close friend or family member. They will only be called upon in the case that both parents (or anyone else with parental responsibility) have died before your child is 18.

“Our solicitor told us that a lot of people don’t make provisions, because they don’t even want to consider the awful possibility. When we thought about it seriously, it made us realise how many wonderful friends and family we have, and how many other adults the children have in their lives now, adults who, even while their parents are still alive, make their lives much richer.”

— Lizzie Enfield via The Guardian

How many guardians should I choose?

We advise you choose one guardian to look after your children, or two if they’re a couple. If your children live together now, it’s usually a good idea to choose the same guardians for all of them so you don’t accidentally split them up.

Is my partner automatically a guardian?

If your partner has parental responsibility of your children, then yes. They will automatically carry on taking care of them. Your guardian will only take over if both you and your partner passes away.

If your partner doesn’t have parental responsibility, then no. In this case it’s really, really important to appoint them as a legal guardian in your will if you’d like them to carry on caring for your child.

You can work out whether you or your partner have parental responsibility here.

How do I know if my partner has parental responsibility?

All mums have parental responsibility. Dads have parental responsibility if:

  • they’re married to the mum at the time of birth
  • or listed on the child’s birth certificate.

If you’re a same-sex couple, you will both have parental responsibility if you were civil partners at the time of fertility treatment or donor insemination.

You can find out more about parental responsibility (including how to apply for it) on GOV.UK.

What should I look for when choosing a guardian?

Choosing guardians is never easy. If it helps, draw up a list of people you’re considering and note the pros and cons. You should think about these things to help you make the best choice:

  • Values: are there any religious or cultural values you’d like your children to be raised with? Does your nominated guardian share these values?

  • Responsibility: how capable are they to care and provide for your child?

  • Familiarity: does your child know (and like them) already?

  • Location: do they live nearby? If not your child may be removed from any of your other friends of family who they know already

  • Other children: does your guardian have other children? Would your child fit in or feel left out?

Above all else, when you decide on someone you’d like to do the job, make sure you discuss it with them and that they feel comfortable with it.

“In the end, we drew up a list of family and friends and asked that they form a committee and decide what should happen to the children, should anything happen to both of us. Leaving the decision to be made by people I trust, taking into account the circumstances at the time, seems like a good solution and reaching it was strangely life-affirming.”

— Lizzie Enfield via The Guardian

What if my partner and I can’t agree on the same person?

In an ideal world, we recommend you both nominate the same person in your wills to avoid any confusion or conflict. But you both have separate wills, so technically you can both name separate guardians if you really want.

The most important thing is to stop putting it off and choose a guardian you’re happy with for now.

It’s less risky having two different guardians, than having no guardians at all. When you make your will online, you always have the flexibility to go back in and change your nominated guardian at any time.

Content prepared in partnership with Farewill, the UK's #1 professional will service. Sort your will today in 15 minutes for £72 with our exclusive code "NEYBER".