Legal Guardianship Responsibilities
A child must have a legal guardian until they reach the age of majority (18 or 19 depending on the province). Before that, a child is considered a minor. A legal guardian has many responsibilities when it comes to the child’s care and well-being.
If you are a parent, you are your child’s legal guardian, which means you have 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 legal guardians.
In this example, if one parent dies, but the other is still alive, the surviving parent remains the children’s guardian. If both parents die and the parent who most recently passed away had a legally binding Will, the children’s guardian will most likely be the person appointed in the Will (subject to court proceedings in certain provinces).
When someone dies without a Will — or if you have not appointed a legal guardian for your children in your Will — then the court steps in and appoints one without any direction from the now-deceased parent. Someone must apply to the court and request that the role of guardianship is given to them. In this situation, the court won’t have any information from you or know whether you may have wanted a particular person to be your child’s legal guardian. More than one person may also apply to the court to be named guardian, creating a potentially stressful situation.
What are a legal guardian’s responsibilities?
As the legal guardian of your minor child, this person will ultimately be responsible for your child’s care and assume the role of a parent. They will make decisions for your child and have responsibilities varying from small everyday occurrences to life-altering events.
These decisions and responsibilities include:
What your child eats every day
Where your child lives and who they live with
Who your child interacts with
Where your child goes to school
How your child gets to and from school
What language(s) your child speaks
The type of medical treatment your child receives
The activities your child participates in
If your child attends religious events
The guardian of your children will also be responsible for a variety of things, including:
Nurturing your child’s mental, emotional, and physical development
Providing a safe place to live
Providing food and clean clothes
Getting your child ready for school every day
Receiving information from others about your child (such as their teacher or doctor)
Applying for passports
Handling any legal matters
Who is the right guardian for my children?
Since your child’s guardian will have a substantial impact on their life, think long and hard when choosing the best person for this role.
There are many factors to consider when making this decision on guardianship, such as:
Familiarity
How well does your child know this person? And how well does this person know your child?
Age
How old is this person? Will they be able to care for your child if something were to happen in the near future? For instance, you may think that the child’s grandparents may be a good fit to become guardians of a teenager, but not a toddler.
Location
Where does this person live? Would your child need to move to a new neighborhood, or would they move into your home?
Keeping your children together
If you have more than one child, can this person care for all of them under one roof?
Personal situation
Does this person have their own family? If so, are they able to take care of your children as well? What is this person’s work situation? Would they be able to balance a family and work?
Social views
Does this person share your values on important issues like family, religion, and education? If not, could their opposing views affect your children?
Finances
Does this person make enough money to support your children? Have you considered how much money you will leave behind for your minor children to inherit once they reach the age of majority (or another age you specify in your Will)? Considering the cost of raising kids, how much money would you need to leave the child’s guardian?
Please note: If you leave the bulk of your assets in your Will to your children and you pass away while they are still minors, those assets are held in trust until they reach 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 — these funds can go towards the cost of living, education, health care, etc.
Suppose you and the other parent are your minor child’s guardians right now. In that case, it’s redundant to name the other parent as guardian in your Will because if they outlive you, they will continue to be the legal guardian of your children.
It’s best if you and the other parent appoint the same person in each of your Wills to be the guardian for your children. In the unlikely event that you both die at the same time, the appointments will only help the court if both parents name the same guardians in their Wills.
Should I appoint more than one guardian?
You certainly can name multiple guardians in your Will, but should you? It may seem like naming more than one person to be your children’s legal guardians — like your parents or in-laws, or a sibling and their spouse/partner — is the right thing to do. But consider what your wishes would be if that couple gets divorced or if one person predeceases their spouse/partner. Would you want to give legal guardianship to a brother-in-law or sister-in-law to act alone? Maybe, but maybe not. If you wouldn’t, it’s probably best to name one person, like a sibling, as the guardian and exclude their spouse/partner.
It’s also a good idea to name an alternate guardian if the person you choose is unable or unwilling to take on the responsibilities associated with raising your child.
Do I need consent from the guardian?
You don't need consent from the person in order to name them in the Will. That said, the person you name is not obligated to take on the role so it is wise to have a conversation with them before naming them. After all, you must make sure they are up to the task. Don’t be offended if they turn you down; it’s better to find out now.
Also, depending on where you live, a guardianship appointment in your Will may only be temporary. In Ontario, for instance, the appointment of the person you name as guardian in your Will is only valid for 90 days. During that period, that person must apply to the court for permanent guardianship, making it critical to know ahead of time whether they are willing to take that crucial step.
Upon reviewing the application, the court will appoint a permanent guardian based on the child’s best interests. The wishes outlined in your Will play a significant role in the court’s ultimate decision.
You may also like to write a letter of wishes that sets out some guiding principles that you would like the guardian to follow when raising your children. It may contain information pertaining to your intentions around education and religion, some career advice, and any goals you have for your children.
Remember: Review your Will regularly
At any point, while you are alive and not incapable, you can make changes to your Will. Granted, choosing who should be the guardian of your children is a huge decision, but it's helpful to know you can change it at any point in the future.
Choose whoever you think would be the best person for the job right now. You can, and should, make changes as your child gets older or if the guardian you selected no longer feels like the right choice.
Let’s face it, most of us would rather not think about our own death. And the thought of leaving young children behind in the event of a death is almost unimaginable — but it’s critical to have a plan.
