Testamentary Guardianship

This page explains how a person can be appointed to act as a guardian for a child in the event of a parent’s or a carer’s death.

What is testamentary guardianship?

The term testamentary guardianship refers to the process by which a person (usually a parent or legal guardian of the child), known as the testator, appoints a guardian for a child to come into effect in the event of the testator’s death. A guardian would usually be a relative or friend who would be willing to care for the child.

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 Children Act 1989.

Who can appoint a testamentary guardian?

• A parent who has parental responsibility (PR) for the child
• A guardian for the child
• A special guardian for the child

This means that an unmarried father who lacks PR for the child cannot appoint a guardian until he obtains PR. For more information see our page on Parental Responsibility.

How is a testamentary guardian 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.

There is no requirement to use a particular form of words. A statement such as  "In accordance with Section 5 of the Children Act 1989 I appoint [X] to be the guardian of my child [Y]" would suffice.

When does testamentary guardianship take effect?

On the death of the testator, a person appointed as a testamentary guardian will obtain PR for the child concerned when one of the following conditions is met:

• The child has no surviving parent with parental responsibility for him
• A Child Arrangements Order or Residence Order was in force which named the testator as the person with whom the child was to live
• A Special Guardianship Order was in force which named the testator as the child’s special guardian and there are no other surviving special guardians

If there is a surviving parent with PR for the child and there is no order for residence or special guardianship, PR will not automatically transfer to the person named as testamentary guardian.

What are the rights and responsibilities of a testamentary guardian?

When a testamentary guardianship comes into effect, the person named will gain PR for the child. This is a legal term that allows the holder to have a say in important decisions affecting the child’s long-term care and upbringing. For more information see our page on Parental Responsibility.

This procedure does not automatically grant the testamentary guardian an automatic right to have the child live with them. To be legally recognised as the person with whom the child lives, an application to court for a Child Arrangements Order or a Special Guardianship Order is required. That is not to say that in the absence of a court order, the child cannot live with the guardian. However, if there is a disagreement about where the child should live, a court order may be required. For more information see our page on Residence.

Can the appointment of a testamentary guardian be discharged?

Any appointment of a guardian under section 5 may be brought to an end at any time by order of the court:

• On the application of any person who has Parental Responsibility for the child
• On the application of the child concerned, with leave of the court
• In any family proceedings, if the court considers that it should be brought to an end even though no application has been made

Section 6 of the Children Act 1989 governs revocation/discharge of a testamentary guardian.