Testamentary Guardians
In life many unpredictable things can happen but the best way to manage these unexpected events is to prepare for them. In her most recent blog, Isabelle Cartwright discusses ‘Testamentary Guardians’…
If you are a parent, you ought to consider who would look after your child in the event of your death. Typically, parents choose a close family member, or a friend, and these individuals become known as ‘Testamentary Guardians’.
How Can A Testamentary Guardian Be Appointed?
A Testamentary Guardian can be appointed in a Will or in writing (as long as it is signed and dated by you, or someone else at your direction) under section 5 of the Children Act 1989.
Who Can Appoint A Testamentary Guardian?
Only a parent with ‘Parental Responsibility’ (also known as ‘PR’), a pre-existing guardian, or a special guardian for the child can appoint a Testamentary Guardian.
A person with Parental Responsibility (as defined in section 3(1) Children Act 1989) is the person who will make all the important decisions concerning a child.
This means that a parent who does not have PR cannot appoint a Testamentary Guardian and nor will they automatically be able to care for the child upon the death of the parent with Parental Responsibility (unless an application is made to the court for Parental Responsibility to be granted in their favour).
When Does Testamentary Guardianship Take Effect?
Testamentary Guardianship comes into effect where the parent who has appointed the Testamentary Guardian dies, and:
1) There is no other parent who has Parental Responsibility.
2) There is no other person with a Residence Order/Child Arrangements Order in their favour.
3) They are the child’s only or last special guardian.
Additionally, where there are family law proceedings the Court may consider it necessary to appoint a Testamentary Guardian.
The Rights And Responsibilities Of A Testamentary Guardian
When the appointment comes into effect, Testamentary Guardians are awarded Parental Responsibility.
This means they will be responsible for making all the decisions in relation to the child in respect of their care and upbringing (as a parent would otherwise have done).
Changing/Revoking The Appointment Of A Testamentary Guardian
If circumstances change, there are a couple of ways to revoke or change the appointment of a Testamentary Guardian.
Under section 6 of the Children Act 1989, this can be done by the person who originally appointed the Testamentary Guardian (if they are still alive) by either destroying or revoking the Will or other written declaration in which the appointment is contained, or by confirming in writing (signed and dated by them) that the appointment is revoked.
If the person appointed as the Testamentary Guardian is the current spouse/civil partner of the person who appointed them and they subsequently divorce then this can revoke their appointment as a Testamentary Guardian, unless contrary intention can be shown.
A person appointed as a Testamentary Guardian can disclaim their appointment themselves in writing.
Finally, the Court can also become involved where a Testamentary Guardian needs to be removed from their post.
How Can Timms Help?
To avoid any future disagreements or people who you wouldn’t otherwise have chosen becoming the Testamentary Guardian for your children, it is best to address these matters whilst you can. If you have any questions about Testamentary Guardians, please contact me at I.Cartwright@timms-law.com or on 01332 364 436.
June 2024