Taking care of the children: Guardianship in a Will

As parents, life is full of daily tasks for taking care of children. While we plan to live a long time, to be there to see our children grow up, and hopefully to celebrate grandchildren one day, one of our important not-so-daily tasks is to make sure our children will be taken care of if life does not turn out that way.

One of the main reasons for parents of children under 19 to make a Will is to appoint a guardian if the parent dies. For this post, I mean a guardian of the person of a child, who will have all the parental responsibilities of raising the child (as opposed to the responsibility for managing the child’s financial estate, which will be dealt with in a separate post).

BC’s Family Law Act allows a child’s guardian – whether or not the guardian is a parent – to appoint a person to be the child’s guardian on their death. This appointment can be made in a Will or in a separate prescribed form and must take into account only the best interests of the child. The appointed guardian cannot be given greater parental responsibilities than the appointing guardian had for the child.

By properly appointing a guardian in their Wills, parents create security for their children and certainty for family and friends; they avoid the needless stress, expense and unpredictability of court and government involvement. The appointed guardian has the comfort of knowing they are helping the person who died in the deepest way by caring for their children.

What happens if a child’s parent and guardian dies without appointing a guardian? If there is a surviving guardian who is also a parent, that surviving parent would take on all of the parental responsibilities for the child. A surviving guardian who is not a parent would have to apply to court for an order of guardianship. For families where both parents live together (and so are both guardians by law), the guardian appointment in the Will says who will take care of the children if something happens to both parents.

For a parent who is the sole guardian (perhaps because the person had a child on their own, is the sole surviving guardian, or was him or herself appointed as guardian under a Will), there is no automatic backup and the guardianship appointment is critical. Without it, the Director under the Child, Family and Community Service Act would be the guardian of the person of the child until a court appointed a guardian.

Many parents and guardians put off making their Will because they are having trouble deciding who should be the guardian. It is not easy to think about. Fortunately, a Will is not cast in stone – you can change your mind. Your guardian appointment can change as your children grow and as your family and personal circumstances change. Some of the factors you may want to consider for appointing a guardian include:

  • the potential guardian’s emotional and physical capacity to raise your child
  • the potential guardian’s ability to love and guide your child through their grief
  • the potential guardian’s ideas and philosophy around parenting, education, religion
  • the potential guardian’s own family situation, health and age
  • where the guardian lives, and whether your child would have to move
  • if the child is old enough, what the child would want
  • impact of your choice on the broader family relationships

There is no magic formula, and ultimately for many parents the decision comes down to a gut instinct after thinking through many factors and possibilities.