What a guardian actually is
A guardian is the person you appoint to take legal responsibility for your children's care if there is no surviving parent with parental responsibility able to care for them. For many couples, this means the appointment would only take effect if both parents had died before the children turn 18.
It is one of the most significant powers you can vest in another person. And yet it is also one of the most commonly overlooked decisions in estate planning. Most parents assume they'll live. Most parents assume the surviving parent will deal with it. Most parents never get around to naming anyone at all.
A Will is the only legal mechanism to appoint a guardian. Without one, the family court decides who raises your children. Your wishes carry no legal weight if they are not recorded in a valid Will.
What happens if you don't appoint one
If both parents die without having named a guardian, the family court takes over. It will consider applications from relatives - grandparents, aunts and uncles, older siblings - and determine who should raise your children based on their best interests as the court sees them.
The court will not know what you wanted. It will not know which of your relatives you trusted, which shared your values, or which you had quietly ruled out. It will make a decision based on the evidence before it. That decision may be the right one. It may not be. You will have had no say either way.
In contested cases - where two branches of the family both want to raise the children - proceedings can be drawn out, acrimonious and damaging. Children may spend months in temporary arrangements while the courts resolve the dispute. This is precisely the moment when your children most need stability.
Why parents avoid the conversation
Almost every parent understands intellectually that they should appoint a guardian. Very few do it promptly. The reasons are understandable.
- It feels morbid. Naming a guardian requires genuinely imagining a world in which both you and your partner are dead. Most people find this uncomfortable to dwell on.
- The choice feels impossible. When you begin to think carefully, the perfect candidate rarely exists. Every option has complications.
- They don't want to offend anyone. Choosing one sibling over another, or one set of grandparents over the other, can feel like a statement about who you love more or trust less.
- They disagree with their partner. Couples sometimes find they have different instincts about who the right person is, and the conversation stalls.
None of these reasons are unreasonable. But none of them change the outcome of not deciding: the court decides for you.
How to think through the choice
There is no formula for the perfect guardian, but there are four dimensions worth thinking through carefully.
Values
Whose values most closely reflect your own? This encompasses how they approach education, religion, discipline, money and life priorities. A guardian who shares your broad outlook on the world is likely to raise your children in the way you would have wanted, even when navigating situations you could not have anticipated.
Capacity
Does the person have the practical capacity to take on this role? Are they in good health? Are they at a life stage where they could realistically raise children? A sibling in their thirties with a stable home is usually a more practical choice than an elderly parent who is already in their seventies.
Relationship with the children
Do your children know this person well? An existing warm relationship makes an already-devastating transition somewhat easier. A guardian who is familiar and loved is far better placed than one who is technically suitable but effectively a stranger.
Practicalities
Geography, housing, their own family situation and finances all matter. A guardian who lives overseas or in a very different environment may struggle to provide continuity - different schools, different friendships, a different community. These practical factors do not override values and relationship, but they are worth weighing.
Joint guardians
You can appoint more than one person as guardian - for example, naming a couple jointly. Joint guardianship means both individuals share parental responsibility. This can work well where a couple is stable and well-matched to the role, but it introduces complexity if the couple later separates. It is worth thinking through what you would want to happen in that scenario and discussing it with the people involved.
The letter of wishes
A guardian appointment in a Will is a legal direction, but it cannot convey nuance. A letter of wishes - a separate, informal document - allows you to explain your thinking in as much detail as you like. You might describe your values around education and religion, your hopes for your children's futures, how you approach discipline, what relationships you want them to maintain with other family members, or simply who you are as a parent.
A letter of wishes has no legal force, but a thoughtful guardian will treat it as exactly what it is: your voice in a situation where you can no longer speak for yourself.
Having the conversation
Before naming a guardian, tell them. This is not merely a courtesy - it is essential. A guardianship appointment that comes as a surprise can be disclaimed. More importantly, a person who has thought seriously about whether they are willing and able to take on this role - and who has spoken with you about your wishes - is far better prepared than one who was named without ever being asked.
The conversation is often easier than parents expect. Most people are moved to be trusted in this way. Acknowledge that you hope it will never be relevant. Explain why you chose them. Give them the opportunity to ask questions and to say no if they genuinely feel they cannot do it. Then make the appointment in your Will with their knowledge and consent.
When to review
Guardianship appointments should be revisited whenever your circumstances change significantly. Key triggers include:
- The birth of another child
- A significant change in your chosen guardian's circumstances - a divorce, a serious illness, a move abroad
- A shift in your relationship with the person you named
- Your children getting older and developing stronger views of their own
- The death or incapacity of the named guardian
A Will that named the right guardian five years ago may not name the right guardian today. An annual review - which Prime Wills includes as standard for every client - provides the opportunity to check that your appointment still reflects your wishes.
The most important step is making the decision at all. An imperfect guardian, chosen by you, is infinitely better than a perfect stranger chosen by a court.
The information in our guides is provided for general information only and is not a substitute for advice based on your individual circumstances.
Wills, trusts, inheritance tax, Lasting Powers of Attorney and estate planning can be complex, and the right approach will depend on your family, finances, assets and wishes. Laws, tax rules, allowances and guidance can also change over time.
You should not act, or decide not to act, solely on the basis of the information in these guides. Where appropriate, you should obtain personalised legal, financial or tax advice before making any decisions.
Reading a guide or completing the Family Risk Review does not create a client relationship with Prime Wills & Estate Planning.