Canada: Everyday Heroes: Appointing A Guardian For Your Minor Children

Did you know...¹

"Guardians" are more than space heroes that save the galaxy: they save your minor children from becoming wards of the government. In the estate planning context, a guardian is the person you appoint to make day-to-day decisions about your minor children, including decisions about your children's health care, living arrangements, education, and cultural, spiritual and linguistic upbringing, when you are not able to do so.

If you do not appoint a guardian for your minor children in your Will (or otherwise), and a minor child has no guardian (e.g., the other parent of your minor child is also deceased or incapable), by default the Ministry of Children & Family Development will become the decision-maker for your children's health, education, and upbringing until each child reaches 19. We encounter very few parents who think this is the optimal life path for their children.

Of course any other person could apply to court to be appointed as guardian, at perhaps significant cost to that person, but it would let the government off the hook. That said, you may not want to take the chance that your least-favourite brother-in-law (who may be financially motivated and who has perhaps expressed disapproval of your cultural or spiritual beliefs) will apply to be the kids' guardian, rather than the kids' favourite aunt.

You do not need to make a Will to appoint a guardian; you may also appoint a guardian using the form entitled "Appointment of Standby or Testamentary Guardian" (Form 2 of the Family Law Act Regulation). We typically recommend that you ask the person you wish to appoint if they are willing to take on the guardianship role.

You should also consider that, if the government being the parental unit for your minor children does not strike enough fear in your heart, without provisions in your Will to the contrary, any part of your estate left to your minor children upon your death will be held by the Public Guardian and Trustee of BC on behalf of your children while they are minors and then go to them outright and in full at age 19. Again, in our experience, very few parents consider 19 a sufficiently responsible and mature age to manage an inheritance.

Footnotes

[1] This is the fifth entry in our blog min-series entitled "Did You Know", providing practical tips for navigating a variety of wills, estates, and trust micro-issues.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.