What Is A Legal Guardian?
Your children mean the world to you, and there’s no doubt you would do anything for them — but have you thought about who would take care of them if anything were to happen to you?
Appointing a guardian in your Will is the only way for you to decide who should step into your shoes and raise your minor children if you’re gone.
What’s the role of a legal guardian appointed in a Will?
As the parent of your children, you are their legal guardian — the person with the legal authority and responsibility to care for them. Children often have more than one legal guardian. For example, if a child has two parents, both are usually the legal guardians.
In this case, if one parent dies, but the other is still alive, the surviving parent remains the guardian of the children. If, however, there is no other guardian alive on the death of one of the parents, and the parent who just passed away had a legally binding Will, the guardian of the children will be the person appointed in the Will (subject to possible court proceedings which may be required in a given province).
Guardianship can be permanent or temporary
Depending on where you live, the guardianship appointment in your Will could be temporary or permanent. For example, in Ontario, the appointment of a guardian is a temporary appointment. Here’s how it works: within a period of 90 days, the person (or people) appointed as guardians for your minor children will need to apply to the court to be formally appointed the children’s legal guardian. During the period that the application is in front of the court, the temporary appointment is extended.
As legal guardian of your minor children, this person will make decisions for your children, such as where they live, where they go to school, what medical treatment they receive, what activities they participate in, etc.
When it comes to picking a guardian, it can be difficult to decide who to choose for this very important role. The most important thing is to pick someone you trust. We get into some of the specific considerations below.
In some other provinces in Canada, the appointment leads to a guardian assuming the role on a permanent basis.
Appointing a guardian
Appointing a guardian for your children in your Will ensures that the court knows your wishes about who you think would be the best person for the job. Choosing someone suitable is a big decision. After all, this person could become your child’s caregiver, so it’s critical that you choose someone you trust. And it is natural to feel like there is no perfect choice. We know you probably feel like the only person who should raise your children is you but don’t let that stop you from completing this important step.
What’s most essential is that you pick the person (or people) you think would be the best choice right now. A Will is not written in stone. You can, and should, make changes as your child gets older or if the guardian you selected no longer feels like the right choice.
If you don’t have a Will, and therefore haven’t named a guardian, there are a number of issues that almost assuredly will arise. Without any knowledge of your wishes, the court won’t have the benefit of knowing whether you would have wanted a particular person to be the legal guardian of your children — and that knowledge is critical.
Additionally, it could be the case that more than one person applies to the court to be named legal guardian because they each think that they should fill that role. Of course, this can lead to conflict between the parties and make a difficult time that much more challenging for your family.
Choosing a guardian
So, how do you choose a guardian? There is no one right answer to this question — everyone’s situation is unique. If the children have another guardian (e.g., your spouse/partner), it’s important to discuss this with them so that their Will reflects the same wishes.
There are many factors to consider in selecting a guardian for your child.
Does your child trust this person?
Does your child have a close relationship with this person?
Is this person mentally, emotionally, and financially prepared to handle the responsibility of raising your child?
Is this person committed to raising your child the way that you’d like? For instance, would your child attend the same school, same church, participate in the same activities, and have the same people in their lives?
Would this person cooperate with the people you’ve named as the executors of your estate to ensure that your child’s needs are taken care of?
Where would your child live? Would this person move into your home or would your child move into theirs?
Naming more than one guardian
It’s possible to name more than one person (i.e., a couple) to both be the guardians of your children. People often do this if they’re naming family members such as their parents or in-laws as guardians.
Sometimes people want to name a sibling and that person’s spouse/partner to be co-guardians. But circumstances can change, and some people might not want to give legal guardianship to a brother-in-law or sister-in-law to act alone, which could be the case if their sibling gets divorced or predeceases them. To avoid this, people often only name the sibling (and not that person’s spouse/partner).
In addition to naming a primary guardian, it is wise to also name an alternate in case the person you choose is unable or unwilling to take on the role.
Other factors to consider
There are a variety of other factors that play into the decision of choosing a guardian.
Do your children know this person? Do they feel comfortable and safe with them? And how well does this person know your children?
How old are your children and how old is the potential guardian? Will the guardian be able to care for your children if something were to happen in the near future? For instance, your child’s grandparents (your parents or in-laws) may be a good choice for right now with the knowledge that you might want to change that in the coming years as they continue to get older. Or you may think that your parents would be a good fit to become caregivers of a teenager, but not a toddler. You can always make a change to your Will if the guardian you selected is no longer suitable.
Keeping your children together
If you have more than one child it may be very important to you that your children be raised together. If that is the case, you’ll need to try and find a guardian who you believe would be able to raise all of your children under one roof.
Does the potential guardian live far from you? If so, your children might need to move there, away from their school, other family members, friends, and places that are familiar to them.
Does the potential guardian have their own children? If so, would they be willing and able to adequately care for your children as well? Does the potential guardian have a demanding job? Would they be able to juggle a family and work?
Is the potential guardian aligned with your views on important issues like family values, religion, and education? If not, their opposing views could impact your children.
You may want to leave a letter of wishes that sets out some guiding principles that you’d hope the guardian would follow when raising your children. The letter could include your wishes around education and religion, some career advice, and any goals you have for your children.
Is the potential guardian financially secure? Do they have the means to support your children? How much money will you be leaving behind for your children? The guardian may need to uproot their life to take care of your children, potentially creating a significant financial burden, so you may want to allocate financial assistance to the guardian in your Will to provide for your children’s care.
If you’re leaving the bulk of your assets to your minor children, those assets will likely be held in trust until the children reach a particular age (the age of majority or a later age if specified in your Will.) If the trust is a discretionary trust — meaning the trustee has some ability to distribute assets earlier — this will be very helpful for the guardians. These funds can often be used for costs related to education, living expenses, health care, etc. This will help to support the caregiver with the job of raising your children.
Getting your guardian’s consent
It’s critical that you talk to the intended guardian about your wish for them to be your children’s caregiver in the event of your death. It’s a huge responsibility to take care of someone else’s children so you need to ensure that they are prepared to do so. If they turn down the appointment, don’t be offended; it’s better that you discussed it ahead of time.
Also, as mentioned above, depending on where you live, a guardianship appointment in your Will might only be temporary. In Ontario, the appointment of the person you name as the guardian in your Will is valid for a period of 90 days. During that period, that person needs to apply to the court for permanent guardianship. It’s important to know ahead of time whether they’re willing to take that crucial step. In reviewing the application, the court will appoint a permanent legal guardian on the basis of the children’s best interests. The wishes you express in your Will are a significant factor that helps the court understand what you believe would be best for your kids.
In other provinces, where a legal guardianship appointment could have a permanent effect, it’s also really critical that you know they are up for the job.
It can seem like a daunting task trying to decide who would be the best caregiver for your children, but remember that it’s not a one-time final decision. In fact, you should periodically review your guardianship appointment to ensure that they are still the best choice. Circumstances may change for your children or for the intended guardian. Your children’s needs could change as they grow up, so the same guardian may not be suitable for the 18-year timeframe of your child’s upbringing.
So just choose the best guardian for right now; your Will can always be revised. The most important thing is that you have appointed someone to care for your children in your absence.