Appointing a Guardian-What You Need to Know

Choosing a guardian for your children can be an emotional and overwhelming decision. I have two daughters under 3, and I hate thinking about a world where my husband and I aren't around to care for them. But it's also one of the most important decisions you can make to ensure your wishes are fulfilled if anything happens.

Let's break down the basics of what a guardian is, why you need to appoint one for your children (and your pets!), what to consider when appointing one, and how to make your choice official.

What is a guardian, and who can be one?

A guardian is the person (or people) who cares for your children if something happens to you and the other parent while they're a minor. For example, if I passed away, my husband would become the sole guardian of our children, but if both of us passed away, our appointed guardian would step in to raise them. A guardian usually manages the children's care and assets, though you can separate the care (custodian) and financial management (guardian).

You can appoint one adult individual as a guardian, for example, a sibling, or you can appoint a couple. Typically, Canadians appoint a family member (like a sibling or parent) or a close friend in this role.

How do I appoint a guardian? 

You typically appoint a guardian in your will, a legal document that outlines your wishes for when you pass away (see our guide to making your will in Canada). If you don't name a guardian in your will, you can alternatively fill out a specific guardian appointment form in your province. Depending on your province, typically, after three months, the guardian would have to go before the family court to formalize their appointment.

It is always a good idea to discuss this with the guardian first to ensure they are able and willing to take on this role since not everyone would have the desire or capacity to take care of your children. It is also important to appoint backup guardians just in case your first choice isn't able to take on the role.

What happens if I don't appoint a guardian?

If you pass away without a will, the family courts will step in to appoint a guardian for your children, and if there were no guardians available to step in, it could result in a public trustee assuming their care. This is why ensuring you have a will with a guardian included is essential; it prevents the courts from making that decision for you. Think of that family member you wouldn't want to care for your children - a will ensures you are in charge of who cares for your children instead of leaving it up to someone else.

What should I consider when appointing a guardian?

When you appoint an executor in your will, typically, you're considering things like how organized they are, whether they are savvy with finances, and their capacity to settle someone's estate. A guardian is quite different - this is asking the question, "Who will provide a loving, stable home for my children?" and ensuring that the qualities you want to instill in your children - for example, hard work and kindness - will be best represented by your choice. Here are the main points to consider when appointing a guardian:

Stability

Does this person have a stable financial and home situation? Your guardian would have access to the funds you leave for your children to pay for their care, so note that the guardian doesn't need to be able to fund their upbringing.

Lifestyle

If you have a vision for how you want your children to be raised, it's important to consider whether this would match the guardian's lifestyle. For example, if you want your children to be raised in a rural area, but the guardian lives in a high-rise in a big city, would they be willing to move? Would you care if your kids moved to the city with them?

Values

Does this person value the same things in life? For example, if you want your kids to travel a lot, but this person is terrified of flying, they might not be able to give them the same experiences you would like them to have. Or they may have different religious beliefs.

Location

The courts tend to prefer someone who lives close to you since it's the least disruptive for the child, but you can appoint a guardian in another location or even outside Canada. You can also add language to your will justifying your choice (for example, if your only sibling lives in Australia, maybe relocating there is the best thing for the children since they would be with family).

Capacity

If you want to appoint your sister, who has four kids and a busy job, would she be able to care for your children? If you appoint your aging parents, would they have the energy and the physical capabilities to care for them?

Experience

Do you care if your guardians are parents already or not? Parents may be more experienced but may have competing priorities with their children.

Do my partner and I have to agree on the guardian? 

According to a Willful Angus Reid study, ​​only 47% of couples agree on who should be the guardian for their children. While it's ideal to align on a choice for guardian, you can each make your own choice for guardian in your will since wills are like tax returns, and each adult needs one.

If, for example, one parent passes away first and then the second parent at a later date, the choice of guardian in that second parent's will would come into effect. But if both parents passed away at the same time, and each parent had a different guardian choice in their will, the courts would need to intervene to make the final decision.

It can be challenging to agree on a choice for a guardian - your partner wants their brother, you want your sister - but making a choice is better than making a perfect choice, and you can always update it as your life circumstances change. Start by making a list of the people you would consider for this role and the people you absolutely would not trust in this role. Compare notes, and if you have some shared choices, that's a great place to start. Then, you can revisit the list of considerations - values, lifestyle, location, etc. - to help make your final decision.

Do I need to leave money for the guardian?

It is unnecessary to leave money to your guardian, since most wills have a clause allowing the guardian to access funds for the care of your children, for example, tuition, clothes, food, and other ongoing costs. Typically, your executor, or the trustee for any trusts holding assets for your minor children, would be able to monitor the use of those funds. If you want to be more specific about what the guardian can and can't use the money for (for example, are DisneyWorld vacations a priority? What about money to start a business?), you can add specifics.

What about pets? 

It's not just children who need a guardian in your will - you can also appoint a guardian to take care of any pets after you pass away. Pets are treated as property in your will, but appointing a guardian means they won't end up in a shelter. Again, ask the guardian before appointing them since not everyone wants to become a pet owner.

My husband and I found it challenging to discuss and align on a guardian. Still, once we made that decision and got the okay from our chosen couple, we felt relief knowing that our kids would have a loving upbringing if anything happened to us. We hope the guardian never has to step in, but we have peace of mind knowing we've made a plan.

This article provides information, not legal advice.

Author:

Named one of Bay St. Bull’s Women of the Year, Erin Bury is one of Canada’s top entrepreneurs, an active startup advisor and a former marketer and technology journalist.

Erin is the co-founder and CEO of Willful, an online estate planning platform that makes it easy for Canadians to create a will in less than 20 minutes.