Guardians

If the parent(s) of a child die before their child has reached the age of 18 (or 16 in Scotland), the child would need the care of a legally appointed guardian. A guardian is the person who takes care of the surviving children and receives any money and/or assets paid from the estate until the children are old enough to be responsible for the estate.

Legal guardians can be appointed by being named in a will.

If no guardian is appointed, the courts will appoint guardians instead, but they won’t necessarily appoint the people who would have been the parents’ choice.

The law concerning the appointment of guardians to care for children is quite complicated, and legal advice should be sought on any proposed arrangements.

The situation may depend on who is considered, in legal terms, to have ‘parental responsibility’ for the child. Fathers do not automatically have parental responsibility, and the rules are different between England, Wales, Scotland and Northern Ireland.

Some key points on the law in England & Wales:

• A single mother can appoint a guardian in her will who will, in most circumstances, be entitled to care for her children on her death. Unless the mother appoints him, an unmarried father will not automatically become the guardian of his natural child on the death of the mother.  
• However, if a woman is married to or divorced from the children's father, or if he has parental responsibility, the guardian she chooses may not normally take over responsibility for the children until after the father's death.
• A single father who has not been married to the mother has no automatic right to appoint a guardian, but should seek legal advice as he may be able to acquire parental responsibility.