Testamentary Guardianship
WHAT IS TESTAMENTARY GUARDIANSHIP?
Under section 5 of the children act 1989 an individual can appoint a testamentary guardian to look after and care for a child in the event of their death.
LINK TO GOVERNMENT WEBPAGE FOR SECTION 5 OF THE CHILDREN ACT 1989.
WHO IS THE TESTATOR?
A testator is the individual who is appointing the testamentary guardian.
WHO CAN APPOINT A TESTAMENTARY GUARDIAN?
Only a testator with parental responsibility of a child including a guardian or a special guardian can appoint a testamentary guardian.
HOW CAN THEY APPOINT A TESTAMENTARY GUARDIAN?
The testator must write it in their will (dated and signed) or put it in writing (dated and signed) so it can be forwarded to the court in the event of their death. There must be 2 witnesses who have signed the will or document.
WHAT OTHER CONDITION HAVE TO BE MET FOR A TESTAMENTARY GUARDIAN TO GET PARENTAL RESPONSIBILITY OF THE CHILD?
A testamentary guardian will get parental responsibility for a child upon the death of the testator unless the child has an existing parent with parental responsibility and there is no child arrangement court order or special guardianship order which names the testamentary guardian.
A testamentary guardian will get parental responsibility for a child upon the death of the testator if the testator was a special guardian and there is no other special guardian alive. If there is another surviving special guardian then the testamentary guardian will not get parental responsibility.
WILL A TESTAMENTARY GUARDIAN SHARE PARENTAL RESPONSIBILITY WITH THE CHILD’S BIRTH PARENTS?
Yes they will.
WHAT IF THERE IS A DISPUTE BETWEEN THE TESTAMENTARY GUARDIAN AND THE CHILD’S PARENTS?
At the the testamentary guardian and the parents must try and resolve the issues between themselves or through mediation.
LINK TO OUR L.I.P HELP GUIDE FOR CHILD ARRANGEMENTS WITH MEDIATION HELP
If this does not resolve issues then the testamentary guardian or the parents can make an application to the court to ask them to help resolve these issues. Such issues could be who the child will live with.
The court has the power to make orders for a prohibited steps order (an individual(s) cannot do something) and specific issues order (a decision about an aspect of the child’s upbringing) or granting sole parental responsibility to the testamentary guardian, the parents or someone else. The form needed for this is form C100.
LINK TO OUR L.I.P HELP GUIDE FOR FORM C100
HOW CAN A TESTAMENTARY GUARDIAN BE REMOVED?
Under section 6 of the children act 1989 the appointment of a testamentary guardian can be revoked by the family court in the following circumstances:
- If the child does not want the testamentary guardianship and the court agrees.
- If an individual with parental responsibility makes an application to remove the testamentary guardianship.
- If the family court believes that the testamentary guardianship should be brought to an end even though no court application for removal has been submitted.
LINK TO GOVERNMENT WEBPAGE FOR SECTION 6 OF THE CHILDREN ACT 1989