Choosing a tutor for your minor children is one of the most important decisions in your will. While it may be difficult to think about someone else raising your child, naming a tutor can help secure their future, in the event something happens to you.
What is a tutor in Quebec?
A dative tutor is a person (or people) who assume responsibility for any dependent minor children in the event you and your spouse pass away. They are appointed by either the parents or court. (This is slightly different than a legal tutor, who holds this responsibility by operation of law. Typically the parents.)
The role of tutor includes two main responsibilities – caring for the person (including physical custody, housing, and other responsibilities), and managing the patrimony (including property, assets, and their inheritance). In Quebec, parents can appoint several tutors for property and assets, but only one individual person or couple as tutor for the person (or physical custody). On Willful, the tutor you appoint will care for both the person and the patrimony.
In other Canadian provinces, these roles are known as guardians and custodians.
When and why do I need to name tutors for my children?
Naming a tutor is extremely crucial when it comes to protecting your child or children. Having a formalized plan ensures that your children will be put in the care of a responsible adult of your choosing in the event you are no longer able to do so.
As soon as a child is born or adopted, It is recommended to update your will to appoint tutors and amend your list of legatees to include them (since children have a legal right to a share of your succession). You can also include your choice of tutor in a protection mandate, in the event you are still alive but medically incapable.
If you have not appointed a tutor, the courts will intervene and appoint one for your child or children. This may not be the person or people that you would have chosen yourself. Failing to name a tutor can also cause strife between family and friends who believe they would have been your choice of caretaker. Without formalized wishes, this can cause the case to go to court and even result in broken relationships between your loved ones. Not only is this not ideal for your family, but it can also be stressful for the children involved.
Who should I discuss this decision with?
Regardless of whether you’re married or in a common-law relationship, it’s a good idea to sit down with your spouse to draft your will (though you do not need to create a will with your spouse - each of you will prepare individual documents, similar to your tax returns). This is especially important when it comes to decisions such as who will care for your dependents. If you share custody of your minor child with someone who is not your spouse, you will want to include this person when making these decisions.
In Quebec, if both parents have expressed different wishes around tutorship for their dependents, the wishes of the last parent to die will be followed.
After making your decision, you should also speak with the person you would like to appoint as tutor to make sure they are willing to take on the role and responsibilities. The role of tutor cannot be forced upon the person appointed, and they have the right to decline the role. Not everyone wants to become an instant parent, so it’s best practice to ensure they agree.
If the person agrees, it’s also a good idea to walk them through the responsibilities and any other wishes you have around the upbringing of your child or children.
It’s also good practice to appoint a backup tutor in the event the person is no longer able to accept the responsibility at the time their tutorship comes into effect.
How do I choose a tutor for my minor children?
Many people opt to choose a close family member or friend to be the tutor for their dependents. However, you may want to consider more than just your relationship with the individual. Some things to consider when choosing a tutor include:
- Educational style
- Geographical location - it’s ideal to choose a tutor close to you, since it’s less disruptive to the child (although you can appoint a tutor outside of your city/province/country)
- Parenting style
- Other qualities that matter most to you
It’s also important to factor in age, health, current family situation, and financial stability as these factors can affect their ability to care for the child.
Most importantly, choose someone who you can trust completely and best aligns with the qualities you’re looking for in your child’s care.
Who can be named as a tutor?
Not everybody can be named as a tutor. Here are some common best practices when choosing a tutor for your dependent children.
- They must be considered an adult (in some situations, a fully emancipated minor can qualify)
- They must be mentally competent to make decisions and understand the consequences of their actions
- It should be someone you trust completely
- Likely a family member or close friend
- It can be either a couple or an individual
Again, it’s crucial to speak to the person you’ve chosen to ensure they fully understand the roles and responsibilities of a tutor.
Can I name tutors outside of Quebec?
Yes, you can name a tutor located anywhere in the world. They do not have to be Canadian or reside in Canada. However, the courts may look at the best interest of the child and will still need to go through the legal formalities before a tutor can be formally accepted.
If you are appointing an out-of-province or out-of-country guardian, it is possible to include a provision in the will stating that the children can be moved out of jurisdiction/country (though that isn’t possible on Willful). There are also potential tax consequences when the children change residences.
Do I need a backup guardian and custodian?
A backup or substitute tutor can bring you additional peace of mind, since there is always uncertainty around when and if your tutor will need to step in. When and if the time does come, your first choice may refuse the task or no longer be able to accept the role or other reasons. A plan B adds a layer of security to your plan.
What if my spouse and I don’t agree on who should be the tutor?
This happens more than you might think – you may want your sister to be the tutor, whereas your spouse wants their brother. It’s common for parents to get stuck during this process.
However, every day that you do not make a decision is an additional day where you do not have a formalized plan for your dependents. It’s best to make a decision rather than put off finishing your will. Besides, if you can’t decide, how can you expect your family to make that decision when you’re gone?
In addition, if both parents name different tutors, the final appointment defaults to the wishes of the person who passed away last. The decision is tough, but making a decision together is in the best interest of your children.
If you’re still having trouble deciding, don’t forget that your will is not a one-and-done document. If you decide to change who you’d like to appoint as tutor, you can always update your will to reflect the changes at any time.
Can my tutor and my liquidator be the same person?
Yes, your liquidator and tutor can be the same person.
It’s important to keep in mind that your liquidator often also acts as the trustee for any trusts for your minor children. This means they are the person who makes decisions on whether the tutor can use the funds for care of the child. If these two roles are the same person, there is no additional oversight.
Can my tutor and my legatee be the same person?
Yes, your tutor and legatee can be the same person.
Do I need to leave money to my tutor for the care of my child?
You definitely can leave money to your tutor, but it’s not necessary. Most wills (including Willful’s documents) outline that the tutor can use the money held in trust to fund the ongoing care of your child (education, food, housing etc.). Your liquidator or trustee will monitor their requests and use of funds to ensure they align with your will.
It’s important that unless you structure that gift to your tutor as a conditional gift (they only receive the funds if they assume the role of tutor), if you leave money to your tutor in your will on a platform like Willful, they will receive this gift regardless of whether they assume the role of tutor - so for example if you create your will when your children are minors, but when you pass away they are adults, the tutor would still receive that gift even though they didn’t have to perform in that role.
If you have dependents, it’s important to make a will and appoint a tutor as soon as possible. Without a plan in place, you are unable to make your own decisions around the care and future of your child or children.
While the decision can be incredibly difficult, ensuring you’ve chosen a tutor for your child can bring you additional peace of mind knowing their future is secure.