Choosing a guardian is about giving your child familiar, loving support if you are no longer here. It is also an area where assumptions can cause problems. Naming someone in your Will does not automatically mean they can take over from a surviving parent.
Start with the person, not the paperwork
Think about who knows your child well, shares your approach to care and could realistically provide a stable home. Consider their health, location, existing responsibilities and willingness to keep important family relationships going. Where possible, discuss how siblings could stay together.
Have an open conversation before appointing anyone. Someone may love your child deeply but be unable to provide full-time care. Consider a substitute if your first choice cannot act, and revisit the arrangement as your family changes.
What does the law say?
In England and Wales, section 5 of the Children Act 1989 allows a parent with parental responsibility to appoint a guardian to act after that parent’s death. A properly prepared Will can record the appointment.
Generally, the appointment takes effect when there is no surviving parent with parental responsibility. There are important exceptions, including certain cases involving a child arrangements order naming the person who has passed away as someone with whom the child was to live, and special guardianship. Existing orders must therefore be checked.
Is the other parent a “substitute guardian”?
Usually this is the wrong way to think about their position. A parent who already has parental responsibility holds that responsibility in their own right. They do not need you to appoint them as a replacement guardian.
Section 2 of the Children Act makes clear that someone does not lose parental responsibility simply because another person acquires it. Appointing your sister or a close friend does not, by itself, remove the other parent’s rights and responsibilities.
What if I do not want the other parent to care for my child?
A clause in your Will cannot simply disqualify the other parent or guarantee where your child will live. If you have concerns about safety, neglect or the suitability of the other parent, obtain advice from a family-law solicitor while you are alive. The right steps depend on the facts, who has parental responsibility and any existing court orders.
When a court decides a question about a child’s upbringing, the child’s welfare is its paramount consideration under section 1 of the Children Act 1989. Your wishes and supporting information can be relevant, but do not replace the court’s decision.
For example, a parent may want their brother to care for their child because he already provides regular support. Recording that wish is useful. Assuming that the Will overrides the surviving parent is not a safe plan.
What can a letter of wishes explain?
A separate letter can describe routines, school, health needs, faith, relationships and your reasons for choosing a particular guardian. Keep it factual and child-focused. It is guidance, not a binding direction to the court, and should be reviewed as your child grows.
Plan for the money as well as the care
Guardians and trustees have different jobs. The guardian looks after your child; trustees manage any inheritance held in trust under your Will. Discuss how those people would work together and what funds could be used for your child’s needs under the trust terms.
Talk through your family’s circumstances
Nene Legal can help you record appropriate guardianship wishes in your Will and identify issues needing specialist family-law advice. For friendly support and free home visits across Northamptonshire, call 01933 588 990 or visit Nene Legal.
Legal sources
- Children Act 1989, section 5: appointment of guardians
- Children Act 1989, section 2: parental responsibility
- Children Act 1989, section 1: welfare of the child
Checked 10 November 2026. General information for England and Wales, not a decision about any individual child. Safer Wills Limited trading as Nene Legal.
