A parent may appoint a guardian and custodian of their child in their Will, subject to Court approval for the remaining time where the child is a minor. The term ‘minor’ refers to a child who is under the age of majority, which is 18 or 19 depending on the jurisdiction in Canada. When considering who to appoint as a legal guardian, it is important to understand the distinction between appointing someone to care for the child and appointing someone to deal with their property.
Caring for minor children
An individual who is appointed to care for a minor child has custody of a child and is tasked with the rights and responsibilities of a parent in respect of that child. The person with custody will generally make decisions regarding the child’s living arrangements, schooling, and if necessary, medical treatments.
The ability to appoint someone to take custody of children is subject to certain restrictions, which can include that:
- The person naming a custodian must be the only person who is entitled to custody of that child. If someone else with legal custody of the child survives the first parent’s death (such as the child’s other parent) then the appointee will not acquire custody.
- The appointee must consent to act as the child’s custodian.
- In some jurisdictions, the appointment of a custodian is subject to approval by the Court.
When considering whether to grant an order for custody, the Court will consider the best interests of the child, including the child’s needs and circumstances and whether the person applying has any history of violence or abuse. The Court will also consider the views of the deceased custodian of the child as provided by their Will, but the Court has complete discretion to make the appropriate order and is not bound by the designation in the Will.
Dealing with your minor children’s property
The person appointed to care for your child generally has the right to deal with limited assets (in most cases up to $10,000.00, which, it should be noted is generally the maximum a parent may deal with absent a Court Order). In order to obtain the right to deal with additional assets, a Court Order giving the person the authority to manage the property must be obtained in most jurisdictions. This can be referred to as a guardianship of property or a trusteeship, depending on the jurisdiction.
Who should I appoint?
An individual has complete discretion over appointing a guardian. In most cases, the person caring for the child is either a close friend or family member. The following is a list of factors to consider:
- Pre-existing relationship with the child
Ultimately, the individual appointed should be someone trusted with that child’s welfare.
For further information regarding guardianship for minor children, please consult a TEP.