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What is a Guardian And Custodian For Children In A Will?

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    It can be difficult to think about someone else raising your child, but if something were to happen to you and your spouse, picking a guardian and custodian to care for them will help secure their future.

    What is a guardian and custodian?

    A guardian is a person or people who will assume the right to manage the assets of your children if you and your spouse pass away. A custodian is a person who will assume physical custody. Guardians and custodians are usually a family member or close friend, and oftentimes the same person acts as both guardian and custodian.

    What’s the difference between a guardian and custodian?

    The key difference between a guardian and a custodian is what they're responsible for. As a parent, you are natural guardians for your children and are responsible for their wellbeing, education, support and maintenance. Appointed guardians assume the same responsibilities, while custodians assume responsibility for managing the physical care and custody of the child, including day-to-day living arrangements, health care, and other immediate needs.

    When do I need to name guardians and custodians?

    It's crucial to name guardians and custodians for your child, especially in emergencies where you're unable to care for them. Under the Children’s Law Reform Act, anyone with custody rights can appoint guardians or custodians through a will. 

    Natural parents automatically have custody rights to appoint a custodian but need to apply for guardianship over the child's property. If two parents choose different guardians, only the mutually agreed upon appointment is valid.

    Updating your will to include guardians and custodians is advised upon a child's birth or adoption. Without your clear choice, the courts will decide, potentially leading to family disputes and court battles. Remember, a guardian or custodian named in a will holds the role temporarily for three months before needing formal court appointment.

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    Who can be given custody of a child?

    Both parents have equal rights to custody of all children they have. Following biological and adoptive parents, other people who can be considered for custody of a child include grandparents, aunts, uncles or other relatives and family friends.

    Who appoints a custodian or guardian?

    If you’re married or in a common-law relationship, it’s a good idea to sit down together when drafting your will, especially when making important decisions like who will care for your dependents should you both pass on. 

    After making your decision with your spouse, you need to speak with the guardian and custodian of choice and make sure they are a willing participant ready to take on the responsibility – appointment is not effective without consent of the persons appointed. You should meet with them privately to share the news and explain the process, including when the duties would be required, and other important details.

    What are things I should consider when choosing a guardian and custodian?

    First, grab a pen and paper and write down traits that you would want in a guardian and custodian. 

    Choose things such as:

    • Values 
    • Educational style 
    • Geographical location 
    • Parenting style 
    • Other qualities that matter most to you

    You should also factor in the person or people’s age, health, current family situation and financial stability as those factors can affect their ability to provide sufficient care for the child. 

    Think about the people in your life that best align with the general qualities you’re looking for in a guardian and custodian. Most importantly, choose someone who you trust completely. 

    Who can be granted guardianship in a will?

    Below are some best practices when choosing a guardian and custodian for your child or children. 

    • They must be considered an adult (age of majority, or 16 in BC)
    • They must be mentally competent to make decisions and understand the consequences of their actions
    • It should be someone you trust completely
    • Consider a family member or close friend(s)
    • It can be either a couple or an individual

    Remember to talk to your chosen guardian to make sure they are mentally prepared to take on the role and responsibilities.

    Can I name guardians outside my province/country? 

    You can name a guardian and custodian located anywhere in the world, but keep in mind that the court will look at what’s in the best interest of the child when deciding whether to formally accept your selected guardian and custodian after the initial 90-day appointment in your will.

    Do I need a backup guardian and custodian?

    Specifying backups (also called substitutes) will add additional layers of certainty to your plan. Your initial choice may refuse the task, or be unable to act for other reasons, which is why it’s important to have a plan B.

    What if we can't decide on a guardian or custodian?

    This is a common conundrum. In some instances, the decision can just feel incredibly difficult. Or perhaps you and your spouse can't come to an agreement. Maybe you want your sister to be guardian and custodian, whereas your spouse wants their brother.

    So instead of choosing a guardian, the process of creating your will grinds to a halt.

    The important thing to remember is that if you can’t decide on who would care for your children, how do you expect your family to make that decision when you’re gone? While it’s a personal decision, choosing a person or couple in your will means you know your chosen guardian and custodian will assume responsibility – if you don’t appoint a guardian in your will, the courts can appoint someone on your behalf, and it likely wouldn’t be who you would have chosen. It’s a tough decision, but making a decision is in the best interest of your children.

    Keep in mind that your will isn't a one and done document. If in the future you change your mind, you can always update your will to reflect your current wishes for who will be your child's guardian.

    Can my custodian and my executor be the same person? 

    Yes, your custodian and your executor can be the same person. It’s important to note that your executor often also acts as the trustee for any trusts for minor children, which means they make decisions on whether a custodian can use those funds for the care of the children – they monitor the funds to ensure they’re not used improperly. If your custodian and executor are the same person, that check and balance does not exist.

    Do I need to leave money to my custodian for my child’s care?

    While you can leave money to a custodian, it’s not necessary. Your will typically outlines the fact that a custodian will use money held in trust for your children for their ongoing care (education, food, shelter). Your executor will monitor their request for funds to ensure they align with your will.

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