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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52 questions

Ask Law and Parents a Question

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

Confused 02/03/2016 at 2:26 pm

Hi. My kids, youngest 16 have had no contact or financial help from there father in over 10 years even before then contact was when he was either drunk or being abusive demanding to see them. Maybe twice a year.
Anyway my question is can I have my long term partner be made her legal guardian or even adopt her.

claire 12/01/2016 at 8:52 pm

My kids were born in South Africa but have british passports through me. We live in the UK. We want to appoint my in laws who live in South Africa as guardians should something happen to both my husbamd and myself. Would they be allowed to come and live in the UK to look after the children. They are SA citizens? Thanks

LawAndParents Editor 03/12/2015 at 11:31 am

We don't know enough about your circumstances to say whether an application would be successful or not. The court form to apply for guardianhsip is form C100

Monty 01/12/2015 at 3:28 pm

We would like to make application for child we have been caring for last 3 years under residence order. The Child's parents are abroad and they have not visited the child for the last 3 years. Do you think an application for Legal Guardianship will be successful. Also do we need to go through mediation as clearly the child's parents are not opposing. They have no interest whatsoever. We would like to get the guardianship so that we can apply for the child's British passport which is not possible otherwise. please advise!

cath 02/11/2015 at 7:01 pm

My daughter is 14 and pregnant can I retain legal guardianship over the baby until she's ok enough and ready

Wez 24/10/2015 at 1:52 am

Hi, me and my wife are considering becoming legal guardians to my niece, who lives in Fiji. My wife is British and I am Fijian. I have spoken to my sister and her ex husband and they haven't any problems with us raising the child. How can we bring the child to the UK and how much would it cost?

LawAndParents Editor 17/09/2015 at 12:12 pm

She may be able to choose once she is 16 although the father will retain parental responsibility until she's 18.

Nancy 15/09/2015 at 9:35 pm

Our daughter and son in law are having serious marriage problems. She is a us citizen, he is brittish. They live in the uk. Our daughter has a temporary visa and hopes to get her permanent visa next year. Their 5 children all have dual citizenships. All but the youngest born in the us. The oldest is 15 and has asked to come live with us, her American grandparents. Her mother would say ok, knowing its better for her. Her father no. How old does she have to be to be able to choose for herself and come legally?

LawAndParents Editor 14/09/2015 at 11:12 am

If you feel you should be entitled to more maintenance, you can try mediation follow by the courts/CMS if that does not work. If you have previously agreed for the father to have your son for 3 nights, then you may have to get an alternative agreement drawn up to change it to 2 nights - again you can do this via a mediation service. If your partner does not agree, then you will have to use the court system to resolve it. If school is only half an hour away then should it not be possible to retain the arrangement you had while your son was at nursery?

Caity 13/09/2015 at 1:16 pm

Hi,My son lives with me and my partner.He is 4 years old. He has started school and his father now has him 2 nights a week ( while at nursery he had him 3 nights). He wont pay me any more maintainace only £25 a week. He says he wants him 3 nights and I have said no due to him living half an hour away from us and my son has school every day. Legally can I stop him ? I am worried he will just take him for 3 nights and I wouldn't know what to do. He has PR too. So far I have no sought legal advice as I don't have much money and am scared he will really fight me. Please help

LawAndParents Editor 26/06/2015 at 11:18 am

@Blue Star Sapphire. You could try applying for a Special Guardianship Order - information is here

Blue star sapphire 22/06/2015 at 6:04 am

My son married outside a non-EU as he lived abroad. They now have 2 children, both are Brits. However, one of them suffered a health condition so we admitted him to a hospital here. Now the issue is that his mother is still abroad while her visa is being processed but this will take time. The father brought the child to be treated here but he has to go back to help his wife and other child with the paperworks...etc and the hospital here requires that I have a "legal guardianship" over my grandson while his parents are away. I called my son to come back but we're clueless on what to do now in order to attain such a legal title for myself in order to be able to look after my grandchild while his parents are away.
Kindest regards

LawAndParents Editor 23/04/2015 at 12:45 pm

@Dario.Most colleges/institutions ask for details of a legal guardian for 17 year olds. Can the child's mother not take on this duty?

Dario 20/04/2015 at 10:52 pm

Question: my daughter and I(both British citizens) live in Spain however my daughter is doing an apprenticeship in London and her mum, who lives in the UK claims that she is required by law to have a legal guardian in the country as she is only 17. Is this true?

kerry 29/09/2014 at 3:47 pm

I have had lagal guardianship of my nephew for the last three years. His mother has been in and out of his life and has never been a reliable. she has been to prison and has continued to get in trouble with the police. She has now told me she is getting a house and wants him back. Ive raised him by myself for the last three years so i will fight to keep him with me. I just woundered what to do next. TAI for any advice given.

mattibey 16/09/2014 at 6:16 pm

I am not sure of you are able to help me, but I have some enquiries regarding the possibility of becoming a guardian in the UK for two children that live abroad (Turks and Caicos islands – a British Overseas Territory). The parents of these children aged 16 and 14 have expressed their desire for me to become their temporary guardian so that they can receive an education in the UK. I have known the family for many years and have a very close and supportive relationship with the family (I lived in the Turks and Caicos islands from Jan 2007 until April this year).

I wondered if you would be able to contact me regarding some queries I have (what is the legal process, how would I go about enrolling them at school etc).

I look forward to hearing from you.

Regards,

Min 31/08/2014 at 7:30 pm

My grandson is 13 next month. When by law will he be able to decide with whom he wants to live with?

tn 06/08/2013 at 1:05 pm

hi Sir(s)
brief story: i was locked up almost a year after being convicted with child neglect. i am not an expert in Law but there were blatantly a lot of missed pieces of information during the trial they decided to convict me. after being released we were supposed to go back to court again to discuss the possibility to be assessed in order to get my children back to me. due to the refusal of legal aid to fund my case in the court, the court decided to put them in adoption plans , within 6 months the court ordered to assess any potential couples willing to come forward to adopt my children. it has been now almost 3 years that i was denied the right to see them since they have been placed in foster cares and now, i received a letter from social services stated that there is a strong candidate couple (foster couple where my children are actually there no) coming forward for a guardianship plans of my children. i have been told to reply to the social services until this Friday. please tell me advantage and disadvantage of my dilemma and what to do?
i can't honestly stand against social services in the position that i am now as a cleaner.they know that i can't afford a private lawyer.
thanks

julie 21/11/2012 at 8:56 pm

i recently fostered a little boy but he is now with another foster carer and his social worker is putting her recommendation to the courts that he be adopted.i have thought about adopting but wonder if i could go for legal guardianship instead.would this be possible and would his natural parents be able to ask for him to return to them at any time.

JLY 18/08/2012 at 2:14 pm

Hi

My husband and I are originally from Fiji and having been living in the UK for 10yrs. We now have two children and should anything happen to us, have asked my sister and her husband to be legal guardians of the kids (they live in Fiji).

Is this possible and what do we need to do to make this happen. We also have close friends in the UK who on a temporary basis can watch the children until my sister can get the kids. Again what do I need to do to make this happen?

Regards

Chez 23/07/2012 at 11:02 pm

Just abit of advice needed, i married my partner 3 yrs ago and in 2011 had twin boys in january this yr i asked him to leave as i got fed up of him not helping financially even though her earned 3 times more than me per wk i paid the bills etc while his money went on beer. And he would go to the shop for me and come back the next morning after going to the pub and forget to come back, hes been to the docs and been told hes alcohol dependent. Hes had no interest in the twins since leaving not even a txt to see if their ok and doesnt help financially for them so i would like to change their surname to my maiden name would i need his permission? And could i make my sister their legal guardian if anything happened to me? Thanks

reallylairy 29/06/2012 at 8:24 pm

My nephews are 2 and 4 years old and are in care,the social services have done an assessment on my husband and myself and have decided we are not suitable to have them with us due to our previous marriages. My husband and I have been together for 8 years and married for 5 years,in that time we have never had an argument and 4 of our 6 children have left home with good educations and are happy young adults. My husband daughter lives with her mother and our youngest son is still at home. We have decided to go and see our local mp and get the papers involved. What rights do with have and what advise can you give us?

angus 29/06/2012 at 10:42 am

My sister has been looking after her granddaughter since the day she was born, and is legal Guardian, to the baby, the mother did not want the baby, or anything to do with her, either did the mothers parents want the child.
However, now after two years. the grandmother on the mothers side, has approached my sisters boy, and suggests he get back with her daughter as she says she was immature at the time of the birth, and as the son, is an idiot he may fall for this story, and I think they want to take the child to the middle east!!!!! where does my sister stand in all this?????

grannygill 15/06/2012 at 5:52 pm

Our only son was married, but died aged 26 when his daughter was 7 months old.
Our daughter in law remarried and out of the blue has said that our grandaughter (now 10) is to be adopted by her husband (of five years) and her name will be changed, as it makes life easier.
How will this affect us?
We feel we should do everything we can to maintain her rightful name
Do we have any rights at all?

Charchar 86 21/05/2012 at 7:37 am

Hi, am looking after how is 14 years old, my mum has moved far away and my brother didn't want to move with her as he didn't want to move schools ect, and now I want a move but the concel or saying as I don't have guardianship of him there's nothing they can do, so I was wounding if anyone knows what I can do to give me so kind of rights of him? :)))

b_tindall 09/05/2012 at 10:15 pm

if the baby's moma moved out can the preson that has guardianship still get maintenace payments?

LawAndParents Editor 23/04/2012 at 10:05 am

@ MC - remember also that your guardianship wishes can always be over ruled by the courts (but are actually usually implemented if they're in the best interests of the child). You could add a letter of guardianship/ or letter of wishes to your will - nominating someone in the UK to take them in until they can travel and to see to their travel arrangements etc.

MC 20/04/2012 at 1:02 pm

My husband and I are longtime UK residents, but he is a German national and I am a US and Irish national (dual citizen), with most of our close family in either the US or Germany. We are in the process of deciding who to nominate as guardian in our will for our young children should we both die, and therefore the guardian we choose is going to be resident in either Germany or the US. Can you please tell me what we need to do to ensure that our children do not spend any time in care following our deaths - do we need to appoint a temporary guardian here in the UK and specify travel arrangements/money for travel arrangements in our will?

steve 03/01/2012 at 8:47 pm

Hi my son who is divorced from his wife but has dual responsibility for there 2 children is due to go to afghanistan at the same time as his ex wife for 7 months .She states that she will be leaving the children with an aupair for the duration.God forbid anything should happen whilst they are away.Would i be correct in saying that the children will need a legal guardian whilst they are away.The parents are both in the army and anything could happen.

croallski 13/12/2011 at 1:11 pm

My brother has put in for gaurdainship of my dad who is in hospital. Looking at the application there are a lot of things that I or my dad do not agree with. My Brother writes that my dad spends all his money on drink leaving my mum with not enough to pay the bills or feed herself He says that taking control of my dads finances would allow her to be better off Is it not the case that when my brother takes control of my dads finances the money is to be used for my dads benefit. I try to get some sense out ofmy dads social worker but she says things like he doesn't need much money in there. Also she says that my dad has had his copy of the application but he denies this and I haven't seen a copy in his bedroom. Lastly has he the right to a lawyer to defend himself.

carol, 19/07/2011 at 4:10 pm

I wish to give my daughter guardianship of my youngest daughter as I find I am unable to cope with her. I don't want to put her into care and my oldest daughter has agreed to look after her. How do I give my eldest legal guardianship? Carol

hector 25/03/2011 at 9:40 am

I am currently fostering three siblings, 10, 9, and 4. The council has put forward a proposal to have the 4 yr old adopted, we feel that these children should stay together and are willing to look after all three until they reach 18, the council say we have no real claim on this even though their mum and dad want us to look after them all, what does a legal guardianship allow us to do and do we still get an allowance if so what is it? The council have asked if we can look after the older children which we will but the little one will propbably be adopted.

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