Legal guardian & godparents: what’s the difference?

  • Insight

08 August 2019

Choosing a legal guardian or a godparent for your child is a big decision. They’ll probably play a significant role in your child’s upbringing and may even become their primary carer, should the worst happen.

Like any major life decision, it’s natural to have some questions. And there are a lot of things to think about before choosing a godparent or legal guardian for your child.  

Here, we guide you through some of the most common questions and provide advice on how to make someone your child’s guardian and what the differences are between a legal guardian and a godparent.

What is a legal guardian?

While there are many types of guardianships, we’re talking here about the guardians who’re appointed to take on parental responsibilities following the death of one or both parents. If such a tragedy should happen, Scots law looks at the parent’s legal writings, usually found in their Will, to help determine who is the person qualified to have responsibility for your child.  The person appointed in your Will is known as a ‘legal guardian’, and they’d have the right to apply for parental responsibilities for your child if you died.

Guardians can also be the child’s godparents as well, and usually they are close friends or family members. But you can choose different people for the roles of godparents and guardians.

What is a godparent?

Traditionally godparents in the Christian faith are part of the baptism service and commit to being responsible for ensuring the child’s religious education and spiritual development throughout their life. Godparents have always been thought of as having a special role in the child’s life and are usually close friends or family members. 

Today, some parents will appoint godparents even if there is no church baptism. Godparents, whether religious or not, can act as role models and help guide children spiritually, emotionally and practically. Most are honoured to be asked to be a godparent.

Godparents have also been seen as the person or people who would care for or bring up the child should their parents die.  However, it’s important to remember that godparents do not automatically have any legal rights over a child.

We quite often hear clients say ‘if I die, my friend as godparent will look after my child’. But, while this might be your intention, it’s not protected by law until you make it clear in your Will.

What’s the difference between godparents and guardians?

Simply put, godparents do not have legal rights while guardians do. Following a parent’s death, the guardian could apply for parental responsibilities and rights for your child.

Guardian legal rights

Guardians don’t have any legal rights while both parents are alive. However, should one parent die, they’d have an opportunity to assume parental responsibility for the child, even if the other parent were still alive.

We often see this come into play for separated or divorced parents.

For example, if one parent died, a guardian could argue that it's not in the child’s best interests to live with the surviving parent. The other parent may live abroad or have limited contact. There could also be concerns about the surviving parent’s relationship (or lack of) with the child, or in some cases, the parent’s lifestyle may not be child-friendly.

In this case, your child’s legal guardian could then apply to the court for parental responsibilities and parental rights and seek an order to have your child live with them permanently.

If a legal guardian secured parental responsibilities, they’d be responsible for:

  • The wellbeing and safety of your child
  • Feeding, clothing and educating your child
  • Making decisions about the child’s lifestyle, boundaries and discipline

Becoming a legal guardian: how to make someone a guardian

Only parents with parental responsibilities and rights can appoint a guardian, so if you don’t already have these rights, you’d need to apply for them beforehand.

You then need to review your Will and outline who would be responsible for your child if you died. Most parents update their Will and appoint a guardian soon after the birth of their child. If you don’t yet have a Will, it is recommended that you do this as soon as possible. Our Private Client team can help with this.

You can  appoint specific duties for the guardian. For example, a guardian may be responsible managing your child’s assets.

You can also choose alternate guardians, should the person you originally intended and stated in your Will is unable to take on parental responsibilities.

It’s also important to review your intentions regularly as relationships and circumstances can change. Your child could develop close bonds with other family members and friends, which might make them more suitable guardians.

Before making any changes to your Will or appointing a guardian, make sure to speak with the person first. Most people will feel honoured to act as your child’s guardian, but some may not be ready for that responsibility or feel they are not the right person.

How to choose a legal guardian for your child

Choosing a guardian for your child is a big decision. You want to select someone who has your child’s best interests in mind and will help them recover after your death.  There are many things to think about when choosing your child’s legal guardian, for example:

  • Nurturing & caregiving skills: it’s important to think about a potential guardian's parenting skills. You want to make sure they’d provide the same love, support and encouragement as you would at home.
  • Family structure: you’ll want your child to be part of a stable, comforting family environment. Consider whether the guardian already has a family and if they’d be able to handle the responsibilities of raising another child. Your brother or sister who’re enjoying the single life might not be the best choice right now!
  • Lifestyle: a child’s lifestyle plays an important role in how they see the world, so you may want to choose someone that shares a similar lifestyle to your family. This will make it easier for your child to maintain their routine, habits and ways of life.
  • Practical circumstances: while selecting a guardian is, of course, an emotional decision, it’s also important to consider practical factors like location, living arrangements and income. For example, you may want to select someone who lives nearby, so your child doesn’t have to change schools.

The who’s who of celebrity godparents

Regardless of any legal or religious meaning, today the concept of godparents is certainly alive and well in celebrity culture….

  • Bono from U2 is godparent to Vivienne and Knox, Brad Pitt and Angelina Jolie’s twins.
  • Elton John and Elizabeth Hurley are godparents to Victoria and David Beckham’s oldest sons, Brooklyn and Romeo.
  • Steven Spielberg is Drew Barrymore & Gwyneth Paltrow’s godfather
  • Aretha Franklin was Whitney Houston’s godmother.
  • Dolly Parton is godmother to Miley Cyrus.
  • Queen Victoria was godparent to over 50 godchildren (45 of whom were named Victoria or Victor....but, don’t worry, there’s no need for your child to be named after their godparent!).

Have more questions?

We’re happy to answer any additional questions you might have or assist you with appointing a legal guardian in your will. Speak to one of our Family Law team members, and we’ll help you get on the right track. But, we’ll leave the godparent honours list to you!

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