Testamentary Guardians

[David Roth]

Hi Irene

This is a really important point that I'm sure will matter a great deal to many special guardians. I'm going to try to answer all your questions, though not necessarily in the order you've asked them, and provide information that should be useful for you.

• - Once they have been named in the will (or other document, but probably best to put it in a will), and BOTH special guardians have died, testamentary guardians do not have to do any more in order to get parental responsibility.
  - HOWEVER they do not have the 'enhanced' parental responsibility (exclusive right to exercise PR) that special guardians have. Parents who thought they could take their child back would not have to get the court's leave before going back to court for a Residence Order, for example.
  - Birth parents still being alive does not prevent someone from being a testamentary guardian.
  - Special guardianship does not pass on to the testamentary guardian, so the support package would not automatically pass on either. It might be advisable for the special guardians to talk to the local authority in advance about how they would support the testamentary guardian should the need ever arise (hopefully it won't!), and the testamentary guardian may want to apply for special guardianship themselves, and ask at that point to be assessed for their support needs.

Hope this helps.

[David Roth]

Legally it doesn't have to be in a will that testamentary guardians are named, it just has to be in writing, dated and signed. Given that it can only kick in after the death of both special guardians, it would be best for both special guardians to date and sign it. However, naming the testamentary guardian in a will would certainly reinforce that this was your wish.

It might be useful for the special guardian to put together a file of documents that would be useful for the testamentary guardian, in case any one does ever try to challenge their right to make decisions for the child. This would include the will or whatever document the testamentary guardian was named in, the original special guardianship order, and other important documents related to the child, e.g. birth certificates. Although the testamentary guardian does have parental responsibility, they don't have a piece of paper to show this unless they go to court, so these documents could help with schools, passports, etc if the testamentary guardian ever has to demonstrate their position formally. It has to be said though that most people the guardian would deal with would probably not have a lot of knowledge about what testamentary guardianship, so the guardian would probably still have a bit of explaining to do with these people.