Wills, guardianship and special guardianship

blurred fairly lightsA guardian is someone appointed to care for a child in place of his or her parents. 

Guardians to care for a child after their parents die

Parents who have parental responsibility for their child can decide who should care for them if they die.  They normally do this by appointing guardians in their will.

The appointment comes into effect if all the child's parents who have parental responsibility die, and the nominated guardians then acquire parental responsibility automatically.  This means that they do not need to make a court application to be permitted to care for the child.  However, the guardians do not become legal parents, which means they do not have financial responsibility and the child has no automatic inheritance rights from them.

Guardianship appointments in wills can also be used to safeguard the position of parents without legal status, ensuring that they are left with a right to care for their child.  This can be particularly important in surrogacy cases, and in cases involving same-sex parents or co-parents who are not legal parents.

If the parents die without having appointed guardians to care for their child, the family court can appoint someone as guardian if they make an application.  Anyone can apply, but only after a child has been left without any parents who have parental responsibility.  The court will decide what is in the child's best interests.

Special guardianship

A special guardianship order is a court order which gives parental responsibility to someone, and restricts the parents from being able to exercise their parental responsibility. Unlike an adoption order, it does not fully or permanently extinguish the parents' legal parenthood.

A special guardianship order is usually intended to provide a secure and long-term legal relationship between the special guardian and the child, whilst still preserving the legal link between the child and his or her birth family. It can be appropriate, for example, where a child is being cared for by grandparents who wish to secure their position but do not wish to become legal parents.

A special guardianship order can be made on the court's own initiative or in response to an application. Various categories of people are entitled to apply (including anyone who has lived with the child for three years); other applicants must first seek the court's permission to apply. If you apply for special guardianship, you must notify your local authority of your intention to apply, and they will be involved in the process by preparing a report for the court. 

Have we answered your question? Would you like advice on your personal circumstances?

Email us at hello@ngalaw.co.uk or call on 020 3701 5915 and we will explain how we can help.