Who will look after my child if I die? Guardianship and “lives with” orders explained

It’s the question nobody wants to sit with for long. If something happened to you, who would look after your child?

Most parents and carers get as far as thinking they should sort it out, and then it slips. It’s worth knowing how guardianship actually works, because the rules surprise people, and in one particular situation they work rather differently from what most people assume.

What is a legal guardian?

Section 5 of the Children Act 1989 lets anyone with parental responsibility appoint a guardian for their child. Usually that appointment is made in a will.

If it takes effect, the guardian steps into the role: they gain parental responsibility and can make the decisions a parent would make about the child’s upbringing.

Does appointing a guardian always take effect?

Not always, and this is where the misunderstanding usually lies.

A lot of people assume a guardianship appointment only matters if there’s no other parent left. Much of the time that’s right. If one parent dies and the other has parental responsibility, the surviving parent simply carries on, and the appointment may not take effect straight away.

But that isn’t the whole picture.

What difference does a “lives with” order make?

A significant one.

A Child Arrangements Order can say that a child “lives with” a particular person. Where someone dies while such an order is in force in their favour alone, meaning it isn’t a shared “lives with” order, section 5 allows their appointed guardian to step into the role and acquire parental responsibility on their death.

In practice, that can mean the guardian shares parental responsibility with a surviving parent.

This matters most for grandparents, other relatives and carers who have a “lives with” order and want continuity of care for the child if something happens to them. It’s one of the few situations where naming a guardian has real effect even though another parent is still alive.

Does naming a guardian mean my child will live with them?

No, and this is important.

Naming someone as guardian does not automatically mean the child will live with that person while there is someone else with parental responsibility. The appointment gives the guardian a legal role. It doesn’t settle where the child lives.

If there’s disagreement about the arrangements, the Family Court may need to decide.

Do I need advice before appointing a guardian?

It’s worth it, yes. A guardianship appointment is only as good as its drafting, and the circumstances in which it takes effect are more involved than most people expect.

What a properly drafted appointment gives you is reassurance that your wishes for your child’s care are clearly recorded. Where a “lives with” order exists, section 5 means your nominated guardian can take on parental responsibility far more readily after the death of the person the child lived with.

Every family is different. What works for one household won’t suit another, and the detail matters. Speaking to someone before you put it in writing is the way to be confident the appointment will actually do what you intend.

Who should I speak to about this?

It depends which part you need, and the two usually sit with different teams here.

If it’s about child arrangements, including applying for a “lives with” order or sorting out where a child lives, that’s our family law team. Kate Jackson, our Head of Family, offers a fixed fee initial appointment of £200 plus VAT (£240). You’ll have dedicated time with an experienced solicitor and come away knowing where you stand and what your options are.

If it’s about making a will and appointing a guardian in it, that’s our wills and estates team, led by Susannah Parr. They have their own fixed fees for wills, so you’ll know the cost before you start.

If it’s both, which it often is, you don’t need to pick. Tell us what’s going on and we’ll point you to the right person first. The two teams work in the same firm and liaise with each other where a case touches both, so your guardianship appointment can be drafted with any orders already in place properly in mind. That’s harder to achieve if the two sit with different firms who never speak.

Thinking about appointing a guardian?

It isn’t a comfortable thing to plan for. It is, though, one of the kindest things you can do for your child, and one of the more straightforward things to put in place.

To get started, or just to talk it through first, please call us, email us or visit our contact page. Tell us roughly what you’re dealing with and we’ll make sure you speak to the right team.

If you’d like to speak to Kate directly about child arrangements, please call 01603 558 713 or email kjackson@nicholsonslaw.com.