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Coffee With An Estate Lawyer: Choosing A Guardian

November 13, 2020
On this episode of Coffee with an Estate Lawyer, Daniel and Arin discuss the topic of guardianship and share tips on how to choose the best person (or people) for the job.
Written By Amanda LevineNovember 13, 2020

To keep Make a Will Month going, Daniel and Arin went on Instagram Live to discuss one of the most important decisions parents of young children have to make when creating their Wills: How to choose a guardian for their minor children.

By law, the parents of a minor child are their legal guardians. However, in the tragic (and unlikely) even both parents pass away while the child is still young, who takes care of them? If you make a Will, you have the opportunity to appoint one or more people to be the guardian of your child(ren). For people with young children, the ability to choose a guardian is often THE motivating factor that drives them to make a Will.

So, what exactly is a guardian and what are some of the things you need to think about when choosing one?

What is a guardian?

As a parent, you are the natural or adoptive legal guardian of your child. If you pass away before the child reaches the age of majority then your spouse continues to be guardian.

In the event there is no surviving spouse, then someone else has to take on the role of guardian. This person essentially steps into your parental shoes and takes on the emotional, financial, and legal responsibility for your minor children. As you can imagine, this is no simple ask and the person you choose will be someone you trust deeply.

Can spouses name each other as guardians in their Will?

When one parent passes, if there is a surviving parent they continue to be the legal guardian of the minor child(ren). So, in this case, there’s no need to appoint a spouse as a guardian.

When you appoint a guardian in your Will, you’re appointing a guardian in the event that you’re the last living legal guardian of your child(ren).

Wills are individual documents, so each spouse has their own Will. Spouses don’t create joint Wills like they might have joint ownership of a house. That means each spouse can name a guardian in their Will. The guardian that is selected will be the one named in the Will of the last surviving spouses.

It’s always a good idea to have these discussions with your spouse and get on the same page when it comes to appointing a guardian for your children—ideally, you’d name the same person or people.

Can guardianship be challenged?

This really depends on the province where you live. In Ontario (as well as many other provinces), for example, guardianship is a temporary appointment. Whoever is named in the Will is officially guardian for a period of 90 days.

During this time, that individual has to apply to the court to be the permanent guardian for your child(ren). Ultimately, the court makes the decision on who will be guardian based on the best interest of the child(ren) at that time. While the court doesn’t have to appoint the person named in your Will as the permanent guardian, it sure makes for some compelling evidence if they are listed in your Will. The court typically takes this into consideration when making their decisions and usually appoints the person you’ve chosen as the best person for the job.

If you don’t have a Will, the court doesn’t have any direction from you regarding what you would have wanted. They will look at the situation and take into consideration who has applied to be the guardian and where the children are at in their lives to make a decision based on who they feel is the best suited to be guardian.

Is it better to name one person or two people as guardian?

Choosing one or two guardians isn’t a matter of right versus wrong but it is a matter of better versus worse.

Let’s say you’re thinking of naming a sibling and their spouse as guardian. Here are some things to think about:

  • If your sibling passes away, would you be happy to have their spouse act alone as guardian? (In Arin’s experience, the answers to this question is usually “Um, not too sure…”)
  • What happens if they get divorced?

Naming just one person (e.g. your sibling) is definitely a safer route to take than legally naming both your sibling and their spouse.

Do I have to update my Will when I have more children?

Most people want to keep their kids together if they pass away and will want to appoint one guardian to take care of all of them.

Any time you have a child, it’s a good opportunity to review your choice of guardian. Here are some questions to ask yourself:

  • Would you feel just as confident about this person caring for one child versus two or three or even four?
  • Does this person already have children? And are they willing to take on more than one?

Having more children doesn’t necessarily mean you should change the person you’ve chosen as guardian but it’s a good time to reconsider and decide whether or not you need to update your Will. It’s also a good time to have an open and honest conversation with the person named as guardian to make sure they’d still feel up to the job.

What does the role of guardian look like?

The simple answer is: Any responsibilities you have as a parent will become the responsibilities of the person named as guardian. This extends to everything from making sure they are schooled and fed properly to paying for a neighbour’s window they broke while playing baseball outside.

In Ontario, there’s even something called the “Parental Responsibilities Act” which says if you’re a minor child, the guardian is financially and legally responsible for any damage caused by the actions of a minor child.

What happens if I don’t choose a guardian?

Choosing a guardian isn’t something a parent takes lightly. After all, it can be hard for anyone to imagine someone other than themselves taking care of their own children. And a situation that leaves both parents unable to care for their own kids is simply unimaginable. This decision is so difficult that–as much as choosing a guardian is a motivating factor to start making a Will–it just as often prevents many people from being able to finish their Will.

But here’s the thing: Not making a Will doesn’t mean a guardian won’t be chosen—the courts will still appoint someone for the job. Making a Will just means you’ll have a say in who is chosen.

So, instead of trying to choose someone “perfect” for the role, choose someone who is best out of the options you have and someone you trust completely.

What are some things to think about when naming a guardian?

Here are some questions to help guide you through this tough decision:

  • Does this person hold the same values as me?
  • Does this person have the same parenting style as me?
  • How do they discipline their kids?
  • What are their religious beliefs?
  • Do they live far from me? Would my children have to move far away from their school and friends?
  • What is their family structure? Do they have kids and do they plan to have more in the future?

Can I choose a guardian that’s out of province?

The most ideal guardian is likely the one that’s a bit closer to home. So if you have the luxury of choice, it’s best to choose a situation where you won’t have to uproot your kids and cause more change than they’ll already be experiencing.

However, if you’re only options are out of province, there’s nothing in the law that says you can’t appoint them to be guardian.

At the end of the day, choose the person you feel is best for the job and will provide the best environment for your kids to be raised in.

Being a guardian should never come as a surprise

The last thing anyone wants is to be surprised by the news they’ve been named a guardian. Always have the discussion with the person you want to name as guardian of your children to make sure they are up to the important task of caring for them if you’re no longer alive.

It’s also a good opportunity to share with them important details like how you’d like your kids to be raised, disciplined, and educated. Let them know important details like the age you’ve chosen to let your kids receive their inheritance. This can take the form of a casual discussion or even be documented more formally and kept with your Will.

Other things to consider when naming a guardian

It’s important to consider things like age and health when choosing a guardian. For example, naming your parents as guardians may make sense right now but will it still make sense in 10 or 15 years? Will they have the mental and physical capacity to look after young kids?

So, while you should always make the decision based on who is the best choice today, remember to revisit your Will and update it as needed. Your Will is a living document and should evolve as your life changes. The best times to review and update your Will are after major life events and milestones like having children, buying a new home, getting married, separated, or divorced, or inheriting a large sum of money.

Watch the full Instagram Live video here:

Written By Amanda Levine
Amanda is the Director of Content at Epilogue. She's committed to helping all Canadians learn the importance of estate planning and protecting the ones they love most. In her spare time, she fosters with a local rescue and walks her rescue dog, Louise!