Children and Family Relationships Act 2015


Power of parents to appoint testamentary guardians

50. The Act of 1964 is amended by the substitution of the following section for section 7:

“Power of parents to appoint testamentary guardians

7. (1) On the death of the guardian (‘deceased guardian’) of a child, a guardian (‘surviving guardian’) surviving the deceased guardian, if any, shall be guardian of the child jointly, where applicable, with—

(a) any other surviving guardian, and

(b) any person or persons appointed testamentary guardian by the deceased guardian in accordance with this section.

(2) A guardian who is—

(a) the parent of a child, or

(b) not being the parent of the child, has custody of him or her to the exclusion of any living parent of the child,

may by deed or will appoint a person or persons to be guardian (‘testamentary guardian’) of the child after his or her death.

(3) On the death of a guardian referred to in subsection (2), the testamentary guardian appointed by the deceased guardian shall, subject to subsections (4) and (5), act jointly with a surviving guardian of the child so long as that surviving guardian remains alive.

(4) Where subsection (3) applies and—

(a) a surviving guardian referred to in that subsection objects to a testamentary guardian acting jointly with him or her, or

(b) the testamentary guardian considers that a surviving guardian is unfit to have the custody of the child,

the surviving guardian or the testamentary guardian, as the case may be, may apply to the court for an order under this section.

(5) On an application under subsection (4), the court may make an order providing that—

(a) the appointment of the testamentary guardian is revoked and the surviving guardian shall remain guardian of the child concerned,

(b) the testamentary guardian shall act jointly with the surviving guardian, or

(c) the testamentary guardian shall act as guardian of the child to the exclusion, insofar as the court thinks proper, of the surviving guardian.

(6) Where the court makes an order under subsection (5)(c), it may make all or any of the following orders:

(a) such order regarding the custody of the child and the right of access to the child of the surviving guardian as it thinks proper;

(b) an order that a parent of the child shall pay to the guardian or guardians, or any of them, towards the maintenance of the child such weekly or other periodical sum as, having regard to the means of the surviving parent, it considers reasonable.

(7) An appointment of a testamentary guardian by deed may be revoked by a subsequent deed or by will.”.