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.
When and why do I need to name guardians and custodians?
Naming a guardian and custodian is a critical task, as your child or children will need to be put in the care of a responsible adult in the event of an emergency that leaves you unable to do so. As per section 61(1) of the Children’s Law Reform Act, any person entitled to custody of a child can appoint, by will, one or more persons to have custody after the death of the appointer or guardians of property. You should note that 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. In the case of two parents who appoint two different persons, only the appointment they all agreed on is effective.
We recommend updating your will, appointing guardians and custodians, and amending your list of beneficiaries as soon as a child is born or adopted. Failing to choose guardians and custodians will result in the courts deciding for you, and it may not be the person or people that you would have chosen yourself.
Alternatively, not naming guardians and custodians can result in a painful tug-of-war between family or friends who believe they would be your choice in caretaker. Without your expressed wishes, a case like this can end up in court and in broken relationships.
It’s important to note that naming a guardian and custodian in your will only appoints them for three months – after that, they have to be formally appointed by the courts.
Who should I discuss this decision with?
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 named as guardians and custodians?
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.
