When to Consider Legal Guardianship

Author: Charlotte Walker-Olivier

Miss D.M asks

My son is 14 years old. Sadly, his dad passed away five years ago. I now have a new partner that lives with us, and my son and my partner get on really well.

My partner and I have discussed some kind of legal guardianship, in case of my passing while my son is still a child. Is there such a thing ?

Legal guardianship, where a child loses both parents, is a subject which should be considered by all parents. Naturally, it is a very difficult topic and one that many parents would probably prefer not to address. But because your son has already experienced the tragedy of the death of his father, this is a subject that you have already thought about. The fact that you have found a new partner who gets on well with your son is good news, and he may seem like the obvious person to consider for this very important role.

You must think about exactly what being a Legal Guardian would involve. The most important factors are stability for your son should the unthinkable happen, and choosing a person that you trust and who is prepared to take on all the long-term emotional and financial responsibilities for your child.

Before choosing a person to be a legal guardian you must be as sure as you can be that they are the right person and will be there for the child. You describe your partner as being “new”. It sounds as if he is happy to take on this responsibility but do make sure that he is the right person. There may be other people who could also act as legal guardian, such as grandparents, any brothers or sisters you may have or close, long-term friends.

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To appoint a legal guardian for your son you should either:

Prepare a will in which the individual is named as your son’s guardian.
Prepare a document, that must be dated and signed, which states that a particular individual will become your son’s legal guardian if you die.

It would be sensible to discuss your choice of legal guardian with anyone else who may have an interest in your son’s wellbeing, such as other family members. Even if you prepare a will or specific legal document dealing with this issue, the decision is not necessarily legally binding.

Someone who disagreed with your choice of guardian could bring a legal case to change the person who has guardianship. For this reason, it is vital to discuss the decision with anyone who does have an interest in your son’s welfare to ensure that there is no disagreement if guardianship becomes necessary. If such a case was brought, the court would consider what was best for the child and reach a decision about whether the person you appointed, or someone else, is the appropriate person to look after your son.

Your situation may be slightly different. ask a question below ↓ and our editorial team will reply with our advice.

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Showing 20 of 52 questions

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Lynne Powell 06/02/2021 at 1:51 pm

Hi how do i stop social services bullying me when I done nothing wrong ans all I want to do is he left alone with my kids lynne

Charlie 18/12/2020 at 8:17 pm

My mum passed away and left my 114 year old daughter how can I have parental Guardian for her please as her dad is not coping well with you death of his wife my sister needs me what to do

Uls 28/12/2019 at 10:18 am

Hi,

I am a single mother to an 8-year-old daughter. She is donor conceived and without a father. If I were to die or be permanently incapacitated she would need to go live with my sister in Germany. However, I want to appoint one or two emergency temporary guardians in the UK who could look after her temporarily if something happened to me, until such a time when either I am recovered or (in case of my death) she could be safely transferred to my sister's permanent care. This is to ensure she can be looked after by friends rather than being taken into care by any authorities. Is there a simple template or form I can fill in or do I need to go through a uk lawyer or agency?

Man thanks for your advice.

Uls

Km 09/10/2019 at 12:23 pm

My 12 year old son has recently asked if he would have to live with his dad if anything was to happen to me. He has reached the age my brother was when our mother passed away and I'm guessing its playing on his mind. His dad is not on his birth certificate as he was not around when he was born but we made contact when my son was 3 as I believe children should know who their parents are. He has been given chance after chance over the years but picks and chooses when he wants to be a dad, mainly when he has a new woman to show off to, or the odd occasion he remembers to provide financially (small amounts) and thinks he has done his bit for the year, and he is constantly blaming myself and even my son for their lack of a close bond as its apparently my responsibility to ensure my sons maintains contact with him rather than him making the effort. So, my son has now reached a point where he thinks he would rather not have him in his life at all. I want to appoint my older brother as my boys legal guardian but in a conversation we had roughly a year ago on the subject, my ex said he would go to court to fight that if anything was to happen to me. Just wondered how it works when he has no parental responsibility) he did have the forms to obtain this, willingly signed by me, when my son was 5 but he didn't go through with it) if he did go to court, got parental responsibility and wanted custody, if the worst should happen, would he be given it or would my son, given that he is almost a teenager now, be able to have a say in the matter?

MHS 08/10/2019 at 1:25 pm

I and my husband both live in the UK, I want to apply for the legal guardianship of my kid sister currently in Nigeria. I want to the know the procedure and requirements.
Thank you

Mikky 29/08/2019 at 7:18 am

My daughter is 35 and single. She has a daughter who is 6 years old. We have financially supporting her with her child. The father is not registered on the birth certificate.
I and my wife are applying for legal guardianship and want to bring our grand child to UK.
I want to know what will be the procedure and likelihood of the case success.

Aisha123 28/05/2019 at 2:19 pm

I have had a redicence order for my granddaughter since she was 18 months old , she is now 14 years old,social service was not involved I have never had no income for my granddaughter, but now her mum, my Beautiful Daughter has passed away and my granddaughter father is in prison for 24 years , do I apply now for special guardianship

GLF 27/12/2018 at 1:20 pm

My wife and I are considering guardianship for our daughter, she is epileptic, developmentally delayed and autistic. She has very limited speech and does not have the mental capacity to make decisions. We thought guardianship would be beneficial but have been told by a local solicitor obtaining one would prove difficult, expensive and effectively put us off pursuing it. A quick trawl of the internet is conflicting so which is it? How long is the process should we decide to go ahead?

Sylvia 20/08/2017 at 12:36 pm

I want to find out. My mother in South Africa has just passed away, is there any way my sister can move to England so I can look after her? She's only 16. She's a foster sister and has been with my family since birth, her mother threw her away the day she was born. She's been with us since birth

LawAndParents Editor 18/08/2017 at 2:35 pm

Make your choice of guardian absolutely clear in your Will, this will definitely be considered in the unfortunate event of your early death.

Mumofboys 16/08/2017 at 10:44 pm

Can I make a will to appoint a legal guardian for my children if their father is still living? Their father is on their birth certificates so has legal responsibility however we split up soon after they were born and has not been in their lives since (they are twins). I experienced domestic abuse during the relationship and he has since become a drug addict, so is in no fit state to look after children. If I was to die can I appoint a family member to be their guardian?

LawAndParents Editor 27/07/2017 at 12:08 pm

We don't really know how you can get around this obstacle unfortunately. You may have to seek the advice of an immigration specialist. Could your new husband adopt her here in the UK? The adoption certificate might then help with the other documentation.

Shaz 23/07/2017 at 2:12 pm

I'm a South African born female who is now a British Citizen, My daughter who is 14 years old was also born in South Africa and her biological father was Nigerian, he left when she was a year old never to be seen again, I have raised her as a single parent until i got married 8 years ago to a British man. We immigrated to the UK and subsequently became British Citizens. the issue is, Her biological father's name is on the unabridged birth certificate. I had to prove to the British Gov that I have had no contact with this man and that i have been solely responsible for bringing my daughter up which i did through years of medical bills, school fees and everything else. 3 years ago we were able to visit South Africa to see family without any problems, however the rules have no changed in that we now have to take along unabridged birth certificate and a letter from the other parent if both not travelling with the child. I obviously cannot provide this as i haven't seen this man for 13 years , my daughter doesn't even remember him and sees my husband as her dad etc. We would like to visit family in SA this coming Christmas but given the new rules it seems it will not be possible unless i apply for legal guardianship of my daughter and have him removed. How can achieve this from the UK? She has a British passport and her SA passport expired in 2015 and the SA high commission wouldn't renew it without father's consent despite me explaining that the father isn't in the picture and hasn't been since she was one. They weren't interested and basically told me to go and find him, they were not very helpful. I would like to know if there is a way I could somehow get legal guardianship of my daughter to enable her to visit South Africa with us?

Your help and advise would be appreciated.

K 14/02/2017 at 10:49 pm

Can my husband & I become gurdians to my nephew who lives in Saudi Arabia
We live in UK & are British citizens

LawAndParents Editor 14/12/2016 at 11:04 am

We really don't know what the situation would be here partly because it's so specific and partly because we are UK based and do not know how the Australian and South African systems work. Maybe seek professional legal and financial help on this one.

Guardianship SA to A 13/12/2016 at 11:09 am

My husband and I are both South African citizens. We want to appoint my brother, an Australian citizen, as the legal guardian of our son should we both pass away.
I want to know how difficult it would be for my brother to have my son moved to Australia and whether he will have access to the funds available in the testamentary trust.

LawAndParents Editor 08/08/2016 at 12:12 pm

You will need to check with/gain consent of anyone who still has parental responsibility before changing his name. If you cannot gain consent, you will need a court order.

Poddy 07/08/2016 at 9:26 pm

My grandson has lived with since he was 6 months old he hasn't seen his mother since he just turned 1 i have full residence/custody off him. He does have contact with his dad my son but he is in prison at the moment as he has no contact with any member of his mothers family can i change is surname to the same as my sons

j 29/07/2016 at 1:30 pm

Hi, my grandson is 2 yrs old and has lived with me and his mother since birth. Now she wants me to evict her and says she wont let me see him. We dont really get on but I look after more than his mum. Do I have rights.

liz 03/03/2016 at 6:30 pm

Hi my daughter and grandson live with me he is 4 I have looked after him for last 3 years as daughter works and constantly stays out at night she is now talking about moving out with grandson who has learning difficulties I am scared she still goes out and doesn't go home leaving my grandson with mates who r strangers to him would I be able to apply to be his full time guardian

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