What does a guardian appointed in a will do?
A guardian steps into a parent’s legal role. Under section 5(6) of the Children Act 1989, a guardian appointed this way has parental responsibility for the child. GOV.UK describes that as providing a home, protecting and maintaining the child, choosing and providing for their education, agreeing to medical treatment and looking after the child’s property.
A guardian appointed by a parent is often called a testamentary guardian, even when the appointment is not in a will. The appointment only ever applies to children under 18.
Who can appoint a guardian?
A parent who has parental responsibility can appoint a guardian to act after their death (section 5(3)). A guardian can appoint someone to take their place, and a special guardian can appoint a guardian (section 5(4)). Two or more people, such as both parents, can make an appointment jointly (section 5(10)).
A will is not the only way. Section 5(5) accepts any appointment that is in writing, dated and signed by the parent. If someone signs a will on the parent’s behalf, the will signing rules in section 9 of the Wills Act 1837 apply; if someone signs another document on the parent’s behalf, it must be in the parent’s presence with two witnesses. Most parents use their will because it is signed formally and found when it is needed.
Who has parental responsibility?
Only a parent with parental responsibility can appoint a guardian, so check this first. The main rules, from GOV.UK and section 4 of the Children Act 1989:
| Person | Parental responsibility |
|---|---|
| Birth mother | Always, automatically. |
| Father or second parent married to, or in a civil partnership with, the birth mother at the birth | Usually yes, automatically. |
| Unmarried father | Yes if registered on the birth certificate, for births registered on or after 1 December 2003 (Adoption and Children Act 2002, section 111). Otherwise by a parental responsibility agreement with the mother, a court order, or later marriage to the mother. |
| Step-parent | Not automatically, even if married to the child’s parent. It can be acquired by agreement or court order. |
A court application for parental responsibility costs £270 from 13 July 2026 (Family Proceedings Fees Order 2008, fee 2.1), and help with fees may be available. If you are an unmarried father who is not on the birth certificate, sorting out parental responsibility comes before the guardian clause. See unmarried parents: both need a will.
When does the guardian appointment take effect?
It depends on whether a parent with parental responsibility survives you. Sections 5(7) to 5(9) of the Children Act 1989 set out the rules:
| At your death | What happens |
|---|---|
| No other parent with parental responsibility survives | The appointment takes effect on your death (section 5(7)(a)). |
| The other parent survives and has parental responsibility | The other parent continues to care for the child. Under section 5(8), the appointment takes effect when the child no longer has a parent with parental responsibility. |
| A child arrangements order named you as the person the child lives with | The appointment takes effect on your death even though the other parent survives (section 5(7)(b)), unless the order also named the surviving parent as someone the child lives with (section 5(9)). |
| You were the child’s only or last surviving special guardian | The appointment takes effect on your death (section 5(7)(b)). |
A guardian appointment therefore does not simply override a surviving parent. If you are separated and worried about the other parent’s care, the guardian clause is not the tool; get family law advice.
What happens if you do not appoint a guardian?
If no one with parental responsibility is left, someone has to go to the family court. A relative or friend can apply to be appointed the child’s guardian under section 5(1), which costs £270 from 13 July 2026, or the court can make an appointment in other family proceedings. The court’s paramount consideration is the child’s welfare (section 1).
In the meantime, the local authority must provide accommodation for a child in need in its area who appears to need it because nobody has parental responsibility for them (section 20). A signed appointment means the people you chose already have parental responsibility when it takes effect, without anyone having to apply first.
Even an appointed guardian is not beyond review. A court can end any guardian appointment on the application of a person with parental responsibility or, with permission, the child (section 6(7)).
How do you choose a guardian and a back-up?
Choose someone who could realistically raise your children, and ask them first. Things parents usually weigh up:
- whether they share your values on education, religion and family contact;
- their age, health and energy for the years until your youngest turns 18;
- where they live, and whether your children would have to change school or leave friends;
- their own family, and how your children would fit in;
- whether a couple should be appointed together, and what you would want if they separated.
Many parents also want a back-up who steps in only if the first choice cannot act. Talk to both people. A guardian can refuse after the appointment takes effect by signing a written disclaimer within a reasonable time (section 6(5)), so a conversation now avoids surprises.
Keep one clear appointment. Under section 6(1), a later appointment by the same parent revokes an earlier one unless it is clear the later one adds a guardian. A handwritten note naming someone else could undo the choice in your will. If both parents make wills, name the same guardians in each.
Should the guardian also look after the money?
They can, but the roles are separate. The guardian decides how your children are brought up. Your executors, acting as trustees, hold what your children inherit until they reach the age set in the will. Under the intestacy rules, and under a will that sets no other age, children receive their inheritance at 18.
Choosing the same person keeps things simple. Choosing different people gives a check and balance: the guardian asks the trustees for money for the children, and the trustees account for it. Either works if the people get on. The details of setting an inheritance age are in writing a will with children.
What should a letter of wishes say to a guardian?
A letter of wishes can tell a guardian what matters to you: schooling, religion, keeping in touch with grandparents, activities, and how you would like money used. It is not legally binding, so anything that must happen belongs in the will itself. See what is a letter of wishes.
What happens to a guardian appointment after divorce or marriage?
An appointment of your spouse or civil partner as guardian is revoked when a court dissolves or annuls the marriage or civil partnership, unless the appointment shows you intended it to continue (section 6(3A) and 6(3B)). An appointment made in a will is also revoked if the will itself is revoked (section 6(4)). Marriage normally revokes a will, so a guardian appointment in a will made before marriage usually falls away with it; see does marriage revoke a will.
How does SwiftWill handle guardians?
If you tell the SwiftWill interview you have children under 18, you must name at least one guardian, with an address. You can name up to four. Everyone you name is appointed jointly, to act together. The clause appoints the named people as guardians of any of your children who are under 18 at the date of your death, to act jointly, and says that it takes effect in accordance with section 5 of the Children Act 1989. So it works whether the other parent dies before you or after you, and where a child arrangements order says your children live with you. Mirror wills use the same guardians in both documents.
SwiftWill does not draft:
- a back-up guardian who acts only if the first choice cannot;
- different guardians for different children;
- conditions, such as a guardian acting only while living in a particular place.
If you need any of these, or you expect a dispute with the other parent about who should care for your children, use a service or solicitor that can draft the arrangement and advise you.
When should parents get legal advice about guardians?
- You are separated and the other parent has parental responsibility, or a child arrangements order is in place.
- You expect someone to dispute the guardianship.
- Your preferred guardian lives outside England and Wales.
- A child has a disability or additional needs that will continue into adulthood.
- You have children from more than one relationship and want different arrangements for them.
For more on the boundary, read do I need a solicitor for a will. If none of this applies, you can start your will and read the preview, including the guardian clause, before paying.
Sources
- Children Act 1989, section 5 (appointment of guardians) and section 6 (revocation and disclaimer)
- Children Act 1989, section 1, section 4 and section 20
- Adoption and Children Act 2002, section 111 (commenced 1 December 2003)
- GOV.UK: parental rights and responsibilities
- Family Proceedings Fees Order 2008, Schedule 1 (as amended from 13 July 2026)
- GOV.UK: write your will
Sources checked 24 September 2026.