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 guardian is appointed for a child in the event of their 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 for the child
• A guardian for the child
• A special guardian for the child

This means that an unmarried father who lacks parental responsibility for the child cannot appoint a guardian until he obtains parental responsibility. 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 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?

When a testamentary guardianship comes into effect, the person named will gain parental responsibility over 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 is 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; or
• 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.