So you’ve been named a guardian for minor children in a will – what next?
Whether you’ve unexpectedly come into the role or someone has asked to name you as guardian in their will, you’re likely wondering what that means for you. In this article, we’ll cover all the basics of guardianship and what you need to know about the role.
Let’s start at the beginning.
What Is A Guardian For Minor Children?
A guardian is a person (or people) who are named in a will to take care of a minor child or children if their parents pass away. They are typically a family member or close friend of the testator (the person who created the will).
What Powers Do Guardians Have?
A guardian is the person who manages the assets of a minor child, while a custodian is the person who assumes physical custody. However, these roles are often filled by the same person – including in a will made with Willful.
What Is An Example Of A Legal Guardian?
A legal guardian could be a child's favourite relative, such as their aunt or uncle, or someone who the parents believe to be the best person for the job, like a grandparent or even a family friend.
A child could need assigned guardianship for few reasons, such as if their parents have passed away or if their parents can no longer care for them (examples being if the parent is in a coma, no longer has capacity, or can no longer provide adequate care for the child).
Why Would Someone Name Me As A Guardian For Their Children?
No one wants to think about a world where a young child loses their parents, but this is the time when a legal guardian would step in. If you were named as a guardian, this means that the parents are trusting you to provide for and raise their children if they are no longer around.
They’ve likely considered traits such as your values, educational style, location, parenting style, and other qualities and have decided you’d be the best fit to raise their children. While they hope you will never need to step into the role, they are giving themselves peace of mind knowing that their children will be taken care of in the event of the unexpected.
In the event a guardian is not named in a will for their children, the courts will appoint someone for them.
Learn more about how parents choose a guardian →
What Are The Responsibilities Of A Guardian For Minor Children?
The guardian of minor children appointed in the will take on the responsibility of raising the children. The specific responsibilities may vary depending on the age of the children and their unique situation. However, you can expect the responsibilities to include:
- Providing day-to-day care for the child, including food, clothing, and shelter.
- Making decisions about the child's medical care, including consent for medical treatments, vaccinations, and addressing any special health care needs.
- Facilitating the child’s education, including school enrolment, getting the child to and from school, attending parent-teacher conferences, and ensuring the child receives an education appropriate to their needs and abilities.
- Offering emotional support, love, and stability. This includes nurturing the child’s emotional and psychological development.
- Managing the child's finances, if applicable. This could involve overseeing the child's property, inheritance, or any earnings, ensuring they are used in the child's best interest.
- Acting as the child's legal representative in matters that require consent or legal action, such as signing contracts or initiating legal claims.
- Protecting the child from harm and ensuring their overall welfare. This might include making decisions about who the child can spend time with and what activities they can participate in.
- Providing guidance and teaching the child values, ethics, and socially acceptable behaviour.
- Depending on the guardianship agreement or the guardian's relationship to the child, the guardian may also help the child with cultural heritage and religious beliefs.
- Preparing the child for adulthood through teaching and modelling essential life skills.
Most parents are expecting the guardian to raise their children according to their wishes. If you know ahead of time that you are being appointed as a guardian in a will, it is typically a good idea to speak with the parents to discuss their expectations. This can be a difficult conversation, but some important things to consider include:
- How would they like their children raised?
- What values are important to them?
- How would they like you to use the funds left for the children?
This is also important information to help you decide if you want to actually take on the role of guardian in the future.
What Are My Financial Responsibilities As A Guardian?
In the will that names the guardian, it will typically also outline that the guardian/custodian will use the money held in trust for the children to fund ongoing care. This includes education, food, and shelter. The executor of the will (or estate trustee) is responsible for monitoring requests for funds to ensure they align with the wishes in the will.
The testator may choose to allocate money to a guardian for taking on the role but this is not always the case.
What Is The Difference Between A Trustee And A Legal Guardian?
If a will establishes a testamentary trust for a dependant child, the estate trustee is responsible for managing that trust for the trust recipient until they reach of age to inherit all of it. A legal guardian, on the other hand, is responsible for the care of the child until they become an adult.
The same person can be appointed as both trustee and guardian. But if that is not the case, the guardian must go to the trustee to get access to the trust funds, and the trustee must manage or delegate those funds under the instruction of the will, not the guardian.
When Would I Take On The Role Of Guardian?
If you are named the guardian for a minor child in a will, you will step into the role upon the death of the parents. This grants you the role for three months, after which you will need to be formally appointed by the courts.
Note that the natural parents to a biological child automatically have custody, and can therefore appoint a custodian in their will, but do not automatically have guardianship over the child’s property and would have to apply for it.
Do I Have To Accept The Role Of Guardian?
No – even if you are named as guardian in a will, you are allowed to decline the role. Accepting the role of guardian and stepping into a parenting role is a huge responsibility and can be life altering. If you are unable or unwilling, you can choose not to accept. This is true whether you find out ahead of time or even if you find out after the parents have already passed away.
At Willful, we recommend parents always name backup guardians – just in case their initial choice is unable to take on the role. That being said, if you find out ahead of time that someone would like to name you as a guardian for their children, you should let them know sooner rather than later. This gives them the chance to choose another person and update their documents.
Learn more about appointing guardians and custodians in a will →
Please note that Willful is not a law firm and cannot provide legal advice. All information in our Learn Centre is general and public information can also be researched through your provincial Attorney General website.
