One of the more difficult parts of Estate Planning involves naming a guardian for your children. The task of appointing someone to care for your minor child (under 19 years in B.C.) after you are gone can be an understandably difficult decision to make. Nonetheless, this is a decision that will be critical in the event that a tragedy occurs in which both parents die while the child is still a minor.

Naming a guardian

Parents in B.C. can appoint someone to be the child’s guardian in their wills. A guardian is someone with the legal power to care for another person and manage that person’s personal and/or financial affairs. A guardian can advise your child, manage assets, and oversee your child’s care after your death. Generally, you’ll nominate a guardian, along with several contingent guardians, in your will. The court has final approval, but it will usually approve whomever you nominate unless there are compelling reasons not to do so.  The court will also consider the wishes of any child 12 or older. So you should check with an older child about their wishes before deciding on whom to name as guardian in your will.

It’s important to name a guardian if you’re a single parent and for separated or divorced parents, it’s best to agree on the choice of a guardian if one or both of you die. If that’s not possible, it’s important to consider your parenting responsibilities (through court order or separation agreement) and ensure that you include them as part of appointing a guardian in your will.

What happens when there’s no guardian?

It is important to give careful thought to this decision because if no guardian is appointed and documented in the parent’s will, the court will make the decision of who raises the child without knowing or taking into account your preference.  In this case, the Public Guardian and Trustee also becomes the trustee and holds any share left to a child (under the age of 19 years).  This child’s shares of the estate will be held in trust by the PGT for them until they’re 19 years old. When the child turns 19, the child can demand all of their money no matter how much it is, regardless of their maturity or financial responsibility. By contrast, if you have a will, you appoint the executor and trustee for the share going to a child under 19, and you can direct that the share be used for the child’s benefit, including support and higher education, without government involvement.  You can also direct how much and at what ages the share is paid to the child.

What do guardian’s do?

The guardian’s job is to look after your minor children, and they may, in turn, appoint a replacement guardian so it’s important to set out a succession of Guardians in your Will.  It’s also important for your Guardian’s will to mirror your choice for succession.

If you have a child with special needs, choosing an appropriate Guardian is even more complex and important. The person you choose must be able to handle the complex financial, legal, and personal needs your child may have. Depending on your child’s needs, you may also need to choose a person who is committed to serving as a guardian even after your child reaches adulthood in the event that the child is deemed incapable at law of managing his or her affairs.

Just like with any other aspects of Estate Planning, it is important to have everything in writing including your choice of Guardians and it is not good enough to simply tell your family or friends of your preferences.

Moreover, it is a good idea to not only name a guardian, but to also name an alternative and a second alternate, in case the first (or second) appointee is unable to serve.

When it comes to selecting the person to care for your children, you may want to select a relative although the guardian does not necessarily have to be a relative. The person selected as Guardian should be the person who will be the best person to raise your child considering only the best interests of your child.

Factors to consider in your selection

  • Similarity of parenting styles;
  • How comfortable your children are with that person now;
  • The age and the physical and mental capability of the individual caring for and raising your children;
  • Location can also be a consideration if you do not want your kids uprooted from their home.
  • Whether that person has enough time to devote to your child;
  • Whether s/he has the interpersonal skills necessary to be an effective advocate for your child
  • Is s/he willing to take on the responsibility
  • Do you trust him or her to keep your child’s best interests in mind;
  • Will s/he be willing to engage your child in all the activities your child may wish to be involved in;
  • If your child requires supports, will s/he be willing and able to keep up with new programs and opportunities for your child;
  • Will s/he adapt to your child’s changing circumstances;
  • Does he or she have the financial ability to manage your child’s estate?

It’s also critical to periodically review your choice of guardian. As your child grows, your child’s needs may change, or the person you initially chose may become unable or unwilling to serve as guardian.

The choice of Guardian for a child is a very important decision and very specific to a family’s individual circumstances.  Consequently, it’s important to meet with a trusted advisor to understand different options and the advantages and disadvantages of those options.

The information provided above is for educational purposes only. This information is not intended to replace the advice of a lawyer or address specific situations. Your personal situation should be discussed with a lawyer. If you have any questions or concerns, contact a legal professional.

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