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How to become a Legal Guardian

In this blog post I explain what a Legal Guardian is and hopefully answer the most common questions.

What is a Legal Guardian?

A Legal Guardian is a person who takes over a parent’s responsibilities after their death.

A guardian is fundamentally different from a Godparent – who in most cases performs a symbolic role. A Godparent can, however, be appointed as a Guardian if the parent so wishes.

A Guardian must be over 18. Other than this, the decision is entirely in the parents’ hands. It is important to choose someone who is capable of caring for the children, and also someone who has a good relationship with them.

What is Special Guardianship?

Special Guardianship is slightly different as it refers to a Guardian who is appointed by the Court under the Children Act 1989. It is often used as an alternative to adoption as, unlike adoption, the legal status of the birth parent is not extinguished by a Special Guardianship Order.

Any person who is over 18 and not a birth parent can apply to be a Special Guardian. If the order is made, the Special Guardian can make decisions with regard to the children, even without the agreement of the birth parents in certain situations. This can be appropriate where, for example, older children are removed from their families but for emotional reasons do not wish for their parents’ legal status to be extinguished.

How do I appoint a Legal Guardian for my children?

Legal Guardians can be appointed by parents, Special Guardians or by the Court. They can only be appointed by someone who has parental responsibility for the children.

A Legal Guardian cannot be appointed by a parent who is alive, as it is not possible to transfer parental responsibility to another person. For this reason, Legal Guardians are usually appointed in a parent’s will. The will needs to be signed and dated for the guardianship appointment to take effect.

Alternatively, a Legal Guardian can be appointed by a signed and dated document which is not necessarily a will.

The Court will usually only appoint a guardian where both parents have died without appointing one, or if both appointed someone different. In this circumstance, the Court may simply appoint both elected persons to act as Legal Guardians with equal responsibility.

Why do I need to appoint a Legal Guardian in my will?

Although it is unpleasant to think about, parents should always consider who would care for their children if both of them were to pass away. If, tragically, both parents did die and had not identified who would be the children’s guardian, this appointment would be made by the Court.

Clearly, a Court will not know the children as well as the parent, nor will it know the nuances of their particular family. It may not necessarily select the person whom that parent would have chosen.

What are the Legal Guardian's responsibilities?

The appointed Guardian will acquire parental responsibility for the child. They have a duty to care for the child, feed, clothe them and meet their needs.

A Guardian does not, however, take on the financial obligations of the parents. Where Special Guardians are appointed and the parents are still living, the Court cannot make any orders requiring the Guardian to pay maintenance, for example, or to make payments pursuant to a Child Maintenance Service (CMS) calculation.

Refusing Guardianship

Guardianship is a significant undertaking and on some occasions, a Guardian may not feel able, or best-placed, to perform that role. If this is the case, that Guardian is able to appoint an alternative Guardian. Once this takes place, the original Guardian’s appointment is terminated and it is take over by the newly appointed Guardian.

Other ways of revoking guardianship include if the parent who made the appointment subsequently makes another, or signs a document specifically revoking the appointment without naming another person. Understandably, if a will or other document appointing a Guardian is revoked or destroyed, that appointment is treated as never having been made.

It is important to note that, if a spouse is appointed as a Guardian – i.e. the children’s step-parent – that appointment is automatically revoked if the parent and step-parent later divorce.

Does guardianship override parental rights?

Guardianship effectively transfers parental rights from the parent to the Guardian. If any parents, or persons with parental responsibility, are still alive, guardianship will not take effect. In this way, parental rights override guardian rights.

Tensions can arise where one parent has dies and has elected a Guardian, but the other parent is still alive. That elected Guardian, at this stage, does not have any ‘rights’ and the living parent will be the one whom is responsible for caring for and making decisions in relation to that child.

Special Guardianship, as detailed above, is different, and these Guardians are able to override the decision-making power of the birth parent.

How long does it take to become a Legal Guardian?

Where a Guardian is appointed by will, the guardianship comes into effect as soon as the will-maker, and any other persons with parental responsibility, have died.

How much does it cost to become a Legal Guardian?

The costs of becoming a Legal Guardian will, in most cases, be limited to the costs involved in making a will. If issues arise, such as another living person with parental responsibility objecting to the Guardian’s appointment, this could become more complex and legal advice is always strongly recommended. The costs involved with this should be explained by your solicitor at the time.

If you have any further questions, or would like to discuss any issues around being a Legal Guardian, or appointing someone as a Guardian, please contact us.

Having graduated in July 2017 with a first class honours degree in law from the University of Bedfordshire, Holly has since been exploring her interest in Family Law. She is currently undertaking her postgraduate LPC and masters course to qualify as a family solicitor. Holly joined Hawkins Family Law in August 2017. She has previously volunteered with public legal advice services and currently is enjoying a new challenge having recently begun a paralegal role at Hawkins Family Law.

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