Parents often feel a sense of urgency about having a will in place to appoint a guardian for their minor children (any child under the age of majority).
Under Ontario’s Children’s Law Reform Act, parents—natural or adoptive—can grant custody of their children to one or more persons in their wills. Although the role is technically acting as custodian, it’s usually referred to as a guardian.
Think it through
Factors to consider when choosing a guardian include the relationship between the proposed guardian and the children, as well as keeping children in their familiar surroundings and schools, rather than uprooting them. Further considerations include the guardian’s:
- emotional, personal and financial capabilities;
- age, as well as those of the children; and
- willingness and ability to take on the responsibility.
If a couple is appointed jointly as guardians of minor children, parents should consider what would happen if the couple were to separate, and include provisions for such a situation. Parents should also consider whether an adult child is suitable to act as the guardian for minor siblings.
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Depending on the minor children’s ages, parents may want to name alternate guardians. They should appoint the same guardian under each of their wills to avoid confusion and prevent disputes for contested guardianship if they die at the same time.
Leave a letter
Parents can outline specific instructions for the guardian in a letter of wishes. Although not binding, the letter allows parents to share their desires in relation to their values, educational objectives, extracurricular activities, religion and other matters.
Make it work
If the guardian is not the same person as the will’s executor and/or trustee, another factor to consider is their relationship. They must work well together, as they’ll need to interact often for many years. Each role requires responsibility and a specific skill set. Having one or more executors act as guardian can ensure effective communication and decision-making for the children’s needs.
Know the court process
Although Ontario law gives parents the authority to appoint a guardian in their wills, the appointment is valid for only 90 days after death. To be granted permanent custody, the named guardian must make a court application.
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Note that the responsibility of a minor child’s property and of a minor child’s custody are two distinct roles. Acting as a guardian of property applies to the child’s property, while having custody relates to the care and control of the child. Only a person who is a legal guardian appointed by the court can make an appointment by will to name a temporary guardian of property (e.g., when a minor inherits significant property and their parents apply to court to be the legal guardians to look after it).
When awarding custody, courts consider the parents’ wishes as expressed in their wills but, ultimately, courts ensure the appointment is in the best interests of the child. Courts may also ask the child whom they wish to act as guardian, if the child is able and mature enough to provide a viewpoint.
Consider funding the guardian
Parents may consider whether financial assistance should be provided to the guardian. If a trust is set up for a child under their wills, it is common to use the trust to pay for the child’s care and maintenance. Acting as a guardian can require fundamental changes to the guardian’s life and create a significant financial burden. Thus, parents should consider including provisions under their wills that allow the trustees to ensure the guardian doesn’t suffer financial hardship and to make appropriate financial arrangements for the guardian. These could include funding home remodelling to accommodate the children, for example, subject to what the trustees of the child’s trust consider reasonable. Parents may also wish to leave a legacy to the guardian under their wills to recognize the guardian’s efforts in looking after their children.
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Although parents have significant power when appointing a guardian under their wills, they must remember the appointment is temporary, and it’s ultimately up to the court to decide on permanent guardianship. After carefully considering their guardian, parents should review the appointment every few years as circumstances change. Consulting a lawyer to discuss further options or family complexities will also help parents determine who would be best suited. Parents should always sit down with the proposed guardian to confirm their willingness to act and to discuss their responsibilities.