Naming a Guardian for Your Children in a BC Will

Few parents enjoy thinking about who would raise their children if they died. But if you do not decide, a court may have to, and the people who step forward may not be the people you would have chosen.

BC's Family Law Act lets a parent who is a child's guardian appoint a future guardian, most often in a will. The appointment is simple to make, but there are details that decide whether it works when it is needed.

What happens if you die without naming a guardian

Under the Family Law Act, each parent is generally a child's guardian while they live together and after they separate. If one guardian dies without appointing anyone, and the child has one surviving guardian who is also a parent, that parent takes on all parental responsibilities unless a court orders otherwise.

The gap appears when there is no surviving guardian, for example when both parents die together, or when you are a single parent and the other parent is not a guardian. A surviving parent who is not a guardian does not become one just because you die. Someone would then have to apply to court to be appointed, with evidence about the child's best interests. Relatives may disagree, and the process takes time while your children need care.

How to appoint a guardian in BC

Section 53 of the Family Law Act lets a child's guardian appoint a person to become the child's guardian on the guardian's death. The appointment can be made in either of two ways:

• In a will made in accordance with the Wills, Estates and Succession Act. A BC will must be in writing, signed at the end by you in the presence of two witnesses present at the same time, and signed by those witnesses in your presence. See making a valid will in BC for the details.
• In the prescribed form, signed with the same two-witness formalities.

If you use the prescribed form, the person you appoint as guardian cannot be one of the witnesses, and independent witnesses are sensible for a will too. Most parents use their will, because it is reviewed alongside everything else they leave their children.

Three limits are worth knowing:

• Only a guardian can appoint. A parent who is not the child's guardian has no appointment to make.
• Best interests only. You must consider only your child's best interests when choosing, and you cannot give the new guardian more parental responsibilities than you have.
• The person must accept. The appointment does not take effect unless the person accepts it, expressly or by conduct. Ask them first.

Coordinating with the other parent

An appointment in a will takes effect on your death. If the other parent survives you and is also a guardian, they remain a guardian, and the person you named may become a guardian alongside them. That may be what you want, or it may create a conflict you never intended.

Couples usually deal with this by making the appointment apply only if the other parent has died first or at the same time, and by naming the same person in both wills. Separated parents should think about it carefully, and may want advice from a family lawyer as well as a wills lawyer.

Choosing a guardian, and a backup

Consider who could realistically take your children into their home: their age and health, where they live, their own family commitments, and whether they share your values on schooling, religion and culture. Talk to them before you sign.

Always name an alternate. People move, separate, fall ill or die. If your only choice cannot act, you are back where you started. If a child is 12 or older and someone applies to court to be appointed guardian, the court must not appoint anyone other than a parent without the child's written approval unless satisfied it is in the child's best interests, so older children's views also matter in practice.

Review the appointment when your circumstances change: a new child, a separation, or a change in the life of the person you named. Our list of estate planning documents every BC adult should have covers the rest of the plan.

Guardian or trustee: who manages the money?

Raising your children and managing their inheritance are separate jobs. Under section 176 of the Family Law Act, a guardian is not, simply by being a guardian, a trustee of the child's property.

If your will leaves money to a minor child without setting up a trust, the Wills, Estates and Succession Act generally requires your executor to pay the child's share to the Public Guardian and Trustee, to be held in trust for the child, unless a court appoints a trustee before the estate is distributed. Either way, the child is generally entitled to the money at 19, which many parents consider too young.

A will can avoid that by creating a trust for your children, naming a trustee, and setting the age at which they receive the capital. It can also let the trustee pay for the children's living costs and education, which helps the guardian. You can name the same person as guardian and trustee, or different people so that each role has a check.

Planning for serious illness

A guardian facing terminal illness or permanent mental incapacity can appoint a standby guardian, who becomes a guardian alongside the parent when conditions set out in the appointment are met. It uses the prescribed form with two witnesses, and the standby guardian must consult the appointing parent as fully as possible. This is separate from the appointment in your will, and the two should be prepared together.

Have young children? Put a guardian and a trust in place together

Our wills and estate planning lawyers can prepare a will that appoints a guardian and an alternate, sets up a trust for your children's inheritance, and coordinates with your partner's will.

Call 604-259-2844 or send us a message to arrange a consultation at our Vancouver office.