England and Wales / Guardianship
What Is a Legal Guardian for a Child in England and Wales?
In England and Wales, a parent or guardian with the required parental responsibility may appoint a guardian for a child in writing or in a Will. Section 5 of the Children Act 1989 determines when that appointment gives the new guardian parental responsibility.
Key points
Section 5 of the Children Act 1989 governs appointments by parents and guardians.
The appointment must be in writing, dated and signed by the person making it.
The appointment may take effect immediately on death or only after another person with parental responsibility dies, depending on the statutory conditions.
A guardian has parental responsibility; executors and trustees have separate estate and property roles.
What is a legal guardian and what are their responsibilities?
When the appointment takes effect, the guardian acquires parental responsibility for the child. Parental responsibility covers the legal rights, duties, powers and responsibilities a parent has for a child, including important decisions about the child’s care, home, education and medical treatment.
How do I appoint a guardian, and when does the appointment take effect?
Section 5 of the Children Act 1989 permits a parent with parental responsibility, or an eligible guardian or special guardian, to appoint another individual as the child’s guardian. The appointment must be in writing, dated and signed; it can be included in a valid Will.
Commencement is fact-specific. An appointment by a parent generally takes effect on the appointing parent’s death if that parent had a child arrangements order providing that the child lived with them, or if the child then has no surviving parent with parental responsibility. Otherwise, it may take effect only when the child no longer has a parent with parental responsibility. Special rules apply to appointments by guardians and special guardians.
How do family circumstances affect guardianship?
The birth mother automatically has parental responsibility. A father or second female parent may have it automatically or acquire it depending on marriage, civil partnership, birth registration, agreement or court order. Step-parents do not acquire parental responsibility merely by marrying a parent. These distinctions affect who can make an appointment and when it takes effect.
Separated, adopted, surrogacy and cross-border families should check the legal position rather than relying on family labels alone.
Who should I choose, and who is eligible?
The statutory appointment is of an individual. Choose someone willing and able to exercise parental responsibility in the child’s interests. Discuss the role first and consider the person’s relationship with the child, health, location, family commitments, values, and the likely effect on the child’s home and schooling. Obtain advice if the proposed guardian lives abroad or the family is subject to existing court orders.
Should I name primary and backup guardians?
A substitute appointment can provide continuity if your first choice dies, refuses or is unable to act. Avoid unclear conditions or competing appointments. If appointing more than one person, consider how they would make significant decisions together and have the Will drafted accordingly.
What happens if I do not appoint a guardian?
A surviving person with parental responsibility may continue to care for the child. If no appointment takes effect, the court can appoint a guardian in the circumstances allowed by section 5 or make other Children Act orders. The court’s decision is based on the child’s welfare, not an informal preference left outside a valid appointment.
What if parents appoint different guardians?
The appointments may take effect at different times and can result in more than one person holding parental responsibility. Parents should coordinate their choices where possible. If appointments conflict with each other or with existing orders, obtain family-law advice; a court may need to resolve arrangements according to the child’s welfare.
How are guardians, executors and trustees different?
A guardian exercises parental responsibility. An executor administers the estate, and a trustee manages assets held for beneficiaries such as children. The same person can sometimes serve in more than one role, but a guardianship appointment does not itself give free access to the child’s inheritance. Read our England and Wales executor and trustee guide.
How should I plan for pet care?
Child guardianship law does not appoint a legal guardian for a pet. Ask a willing person to act as carer, record practical instructions, and obtain advice before setting aside estate funds for the animal’s care.
Should I leave a letter of wishes?
A letter of wishes can record routines, education, healthcare, family connections, culture and values. Keep it current and accessible. It offers practical guidance but does not replace the signed appointment, override a court order or bind the guardian to a decision that is no longer right for the child.