Q&A - How do I appoint someone to legally care for my child if I die?

Q:    My husband died in Afghanistan and now I have been diagnosed with an aggressive cancer. My parents are elderly and my in-laws and sister all live abroad, so I do not have any relatives who could feasibly look after my daughter and bring her up if I die. Her godparents, who are my closest friends, adore her and would gladly have her, but as they are not her blood relatives how can I go about ensuring that this can happen?

A:    The law does not provide godparents with any specific rights in terms of caring for their godchildren if the children’s parents should die. Therefore, to ensure that your daughter’s godparents are able to care for your daughter, you will need to appoint them as “testamentary guardians” in a Will.

The Children Act 1989 introduced the concept of something known as ‘parental responsibility’. This term is applicable to anyone taking legal responsibility for a child, not just the child’s parents. A guardian is the ‘legal parent’ of a child under eighteen. The term ‘testamentary guardian’ means a guardian appointed by someone in their will. As testamentary guardians your daughter’s godparents would assume parental responsibility immediately if you were to die before your daughter reached the age of 18. They would then be able to exercise all of the rights and responsibilities that a parent has over a child in respect of the child’s health, welfare, education etc and they must always act in the child’s best interests.

If you die before your daughter reaches the age of 18, her testamentary guardians may need to apply to the Court for a Child Arrangements Order or a Special Guardianship Order in order to have your daughter live with them and have Parental Responsibility in respect of her. The solicitor appointed to make your Will can explain the procedure to them and to you in more detail.

Article31/05/2021

This question has been answered by Ulia Choudhry, a Solicitor with GHP Legal.  If you would like to speak to someone about this or any other legal matter it is still possible, and we are doing everything we can to ensure that we continue to offer our high levels of service to our clients.  In accordance with government guidelines, some of our lawyers are currently working remotely which means you may not now receive a response as promptly as you may expect. Please kindly bear with us and we will respond as soon as we are able.

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Ulia Choudhry

Ulia Choudhry

Solicitor

Part of our Probate, Wills, Tax and Trusts team in Wrexham

Victoria Wilson

Victoria Wilson

Partner

A Partner and Head of our Probate, Wills, Trusts and Tax team