Common questions to ask when appointing legal guardians

Planning for your child’s future can feel overwhelming, but appointing a legal guardian offers peace of mind that they will be cared for by someone you trust if you can no longer do so. Below, we explore the most common questions parents ask when making this often difficult decision.

Who can and can’t be a legal guardian?

In the UK, a legal guardian is an adult who is entrusted with the responsibility to care for a child and to make decisions on the child’s behalf where the child’s parents are unable to do so. A guardian must be over the age 18 years old and mentally capable of carrying out the role. Guardians are most commonly close family members, such as grandparents, adult siblings, aunts or uncles, but they do not have to be relatives. What matters most is the person’s ability to provide stability and act in the child’s best interests.

Individuals under the age of 18 are not permitted to act as guardians, neither can those who are physically or mentally incapable of providing appropriate care for a child. Likewise, individuals with criminal convictions that make them unsuitable to work with or care for children, as well as those who are unwilling or unable to undertake the responsibilities involved, will not be appointed.

Does anyone have automatic legal responsibility for a child?

Mothers automatically have ‘parental responsibility’ from birth. Fathers also acquire it automatically if they’re married to the mother at the time of the birth, while unmarried fathers must take additional steps, such as being named on the birth certificate or obtaining a formal agreement or court order.

Crucially, no one else has automatic legal responsibility for a child. Even grandparents, stepparents or a parent’s partner who play a central role in a child’s life are unable to make key decisions, including about medical treatment or schooling, unless parental responsibility has been formally granted, for example, through a guardianship appointment.

What responsibilities does a legal guardian have?

A legal guardian steps into the shoes of a parent. They take on full responsibility for a child’s welfare, including decisions about education, medical care, religion and everyday upbringing, as well as safeguarding any assets or inheritance. In practice, this means everything from attending hospital appointments to choosing a school – always acting in the child’s best interests and providing stability, reassurance and continuity at what is often an exceptionally difficult time in a child’s life.

Does a child have to live with their legal guardian?

A legal guardian is responsible for a child’s welfare, decision‑making, and overall care. However, a child does not always have to live with the appointed guardian, as long as arrangements remain safe and in the child’s best interests. While it is usual for children to live with their guardian, they do not have to. For example, if agreed, a child can continue living with close relatives during the school term if it offers greater stability, even if their guardian lives elsewhere. The appointed guardian will continue to handle the major decisions, even if they do not live with the child.

How do you choose a legal guardian?

Choosing a guardian requires thoughtful consideration. Key factors include shared values, emotional readiness, relationship with the child, financial stability, and location. It is important to select someone who aligns with your parenting priorities and is prepared for the responsibility.

A common appointment is choosing your own parents as guardians for your children. However, the age of close relatives may need to be considered. Sometimes younger, trusted friends who have a strong bond with your children and live nearby may prove the best choice to ensure minimal disruption.

How do you appoint a legal guardian?

In England and Wales, guardians are typically appointed through a Will and only someone with parental responsibility can make this appointment. To be valid, it must be in writing, signed, and dated. Many parents also include a non‑binding ‘Letter of Wishes’ to guide the guardian on upbringing preferences, such as education or cultural values.

When appointing a legal guardian, it’s important to first choose someone you trust and ensure they are genuinely willing to take on the responsibility. Once agreed, you should formally record the appointment, and best practice is to do this within your Will. To provide additional clarity and support for your chosen guardian, many parents also include a non‑binding Letter of Wishes, offering guidance on values, routines, and hopes for their child’s upbringing. The appointment becomes effective upon the death of both parents who have parental responsibility. If one parent is surviving who has parental responsibility, the guardianship will not take effect.

What happens if both parents die leaving young children?

If both parents die while their children are still young, the question of who will care for them becomes urgent. If a legal guardian has been appointed in a valid Will, the guardian’s role takes effect immediately on the death of the second parent with parental responsibility. This provides clarity and stability at what is an extremely difficult time.

If no guardian has been appointed, there is no automatic transfer of responsibility to grandparents or other relatives. Instead, the situation may require court involvement. Family members or others close to the child would need to apply to the court for parental responsibility or a child arrangements order. While the court’s overriding consideration will always be the child’s best interests, this process can be time‑consuming, stressful, and emotionally draining for everyone involved – particularly the children.

During this period of uncertainty, the local authority may need to become involved to ensure suitable care arrangements are in place, even where loving family members are available. This can be distressing and may lead to temporary arrangements that parents would not have chosen.

By appointing a legal guardian in advance, parents retain control over who will care for their children, reduce the risk of disputes between family members, and avoid unnecessary delay or court intervention. It allows children to remain with someone familiar, offering reassurance, continuity and stability at an otherwise overwhelming time. By choosing the right person and documenting your wishes clearly, you lay the foundations for your child’s stability, whatever the future holds.

For more information, see our previous article on the topic or contact Georgia Butterworth on 01603 756551 or [email protected].