Appointing a guardian is one of the most important decisions a parent can make in their will — and one of the most frequently deferred. Here is what the law provides, why the choice is more complex than most people realise, and how to make an appointment that will actually hold.
Why so many parents put this off
In our experience, the guardian question is the single most common reason parents delay writing a will at all. The financial provisions — who inherits, how assets are held for children, what age beneficiaries receive funds — are often straightforward to decide. The question of who would actually care for your children if you and your partner were both gone is altogether harder and tends to produce inaction.
The consequence of that inaction could be significant. If you die without appointing a guardian, no one automatically steps into the role of caring for your children. The court decides — and while the court will consider what is in the child's best interests and the process can be contested, protracted, and distressing for everyone involved, including the children. Crucially, it will make the decision for your children without any input from you.
The question of who would care for your children if you were gone is one only you can answer. The law can give effect to your decision — but only if you make one.
What a guardian appointment actually does
In English law, a guardian appointed in a will acquires parental responsibility for your child on your death. This gives the guardian the right and responsibility to make decisions about the child's education, medical treatment, religion, and day-to-day upbringing.
The appointment takes effect in different circumstances depending on your family situation. If both parents have parental responsibility and one survives, a guardian appointment in the deceased parent's will does not automatically take effect — the surviving parent retains parental responsibility alone. The guardian steps in when the last surviving parent with parental responsibility dies, or if there is no surviving parent.
Choosing the right person — what to weigh
There is no objectively correct answer, and the right choice varies considerably depending on your family's circumstances, the ages and characters of your children, and what matters most to you about how they are raised. That said, there are a number of considerations that consistently arise in conversations with clients:
1. Values and parenting philosophy
How closely does this person's approach to raising children align with yours? This includes education, religion, discipline, and the kind of life you would want your children to have. Geographic proximity matters too — moving children away from their school, friends, and extended family is a significant disruption.
2. Capacity and life stage
A sibling in their thirties with young children of their own may be an instinctive choice, but is that realistic? The practical demands of taking on additional children — particularly if your estate provides financial support — deserve honest consideration. Equally, older parents may be deeply loved but may not have the energy for young children over the long term.
3. Relationship with your children
The person who is closest to you is not always the person your children are closest to. If your children already have a strong relationship with the proposed guardian, continuity of that relationship is valuable in itself.
4. Have you asked them?
A guardian appointment in a will is not legally binding in the way that many people assume — a court retains the power to make a different order if it concludes a different arrangement is in the child's best interests. A guardian who was unaware of, or unwilling to accept, the appointment is a vulnerability in the plan. Conversations in advance are essential.
5. Appointing more than one guardian
It is possible to appoint joint guardians — for example, a couple. This raises its own considerations: what happens if they separate? The will can address this, and in some circumstances appointing a sole guardian with a named successor is a cleaner arrangement.
What happens to the money — and why it matters for the guardian choice
Unless your will provides otherwise, assets inherited by a child under 18 are held on statutory trusts until they reach majority. In practice, many well-drafted wills establish a discretionary trust for minor children, with named trustees managing and distributing assets for the children's benefit — typically until a specified age, commonly 21 or 25.
The deliberate separation of the guardian and trustee roles protects children in two directions. It ensures that financial decisions about the estate are made by someone with the relevant competence, without placing that burden on the guardian alongside the demands of day-to-day care. It also provides a check: a trustee who is independent of the guardian can ensure that funds are applied for the children's benefit rather than absorbed into the guardian's household.
- Guardian: Aquires parental repsonsibility. Makes decisions about education, welfare, and upbringing. Does not manage money. Can be a family member or close friend.
- Trustee: Holds and manages inherited assets on behalf of the children. Makes financial distributions. Should be someone with financial judgment. Can be a professional trustee. Could be the same as the guardian if appropriate.
International families and cross-border complications
If you or your proposed guardian are not domiciled in England and Wales, or if your children have connections to another jurisdiction — through nationality, habitual residence, or significant assets — the picture becomes considerably more complex. Guardian appointments in an English will are not automatically recognised in other countries. A child who is a dual national, or who has been living abroad, may be subject to the jurisdiction of a foreign court, which may apply different rules entirely.
This is an area where taking proper advice is not optional. A well-drafted English will alone is not sufficient protection for a family with significant international connections. Coordinated planning across jurisdictions — potentially including mirror appointments or separate wills in relevant countries — is likely to be necessary.
A note for separated of divorced parents
If you and your co-parent are separated and both hold parental responsibility, the survivor will ordinarily care for the children without reference to a guardian appointment in your will. However, if you have concerns about the other parent's ability or suitability to care for the children alone, those concerns can be addressed — carefully and sensitively — through the terms of your will and accompanying letter of wishes. This is a conversation worth having with a solicitor before the will is drafted.
The letter of wishes — giving your guardian guidance
A will is a legal document; it is not the place for the kind of personal guidance a guardian will actually need. A letter of wishes, written alongside your will, allows you to speak directly to your guardian and trustees about how you would want your children to be raised: their education, their religious upbringing (or absence of it), what you want them to know about you, how you would want significant decisions made. It is not legally binding, but it is enormously valuable — both as a guide to those who will care for your children, and as a record of your intentions should any dispute ever arise.
Many of our clients find the letter of wishes the most personally meaningful document in the whole process. It is an invaluable resource for the executors/trustees and the guardians (and potentially even your children).
Reviewing your appointment as circumstances change
A guardian appointment made when your children are infants may not be the right appointment when they are teenagers. Circumstances change — the proposed guardian's own family situation, their health, your relationship with them, your children's own expressed wishes as they grow older. As a rule of thumb, a will with guardian provisions should be reviewed whenever there is a significant change in family circumstances, and at a minimum every three to five years.
The same review should extend to your trustees, the age at which children receive assets outright, and the financial provisions you have made for their upbringing and education. These elements are interconnected and should be considered as a whole.
Have the conversatio while you can
Guardian provisions require careful thought and proper legal drafting. Our private client team advises families at all stages — from first wills to complex cross-border arrangements. We would be glad to talk through your situation in confidence.