Several of our clients first start thinking about estate planning after the birth of their first child (or second or third child).  One of their biggest concerns is who will look after their children in the event that they pass away? Or, who will look after their children should they lose capacity or face a terminal illness?  In other words, who will become the guardian of their minor children should these events occur?

Several changes to guardianship law and the appointment of guardians were made by the Family Law Act, S.B.C. 2011, c. 25 (the “Act”), when it came into force on March 18, 2013.  It is important to have a clear understanding of this Act to ensure that an effective valid appointment of a guardian is made.

Only the person who has the parental rights and responsibilities of a child may appoint a guardian; and a parent may only appoint someone to take over the parental rights and responsibilities that they have.  This is an important distinction should there be a split of parental rights (ie: as a result of separation or divorce). A guardian may not grant greater parental rights/responsibilities then the appointing guardian (or parent) has with respect to a given child.

Under the new Act, a guardian of a child (whether that guardian is a parent or not) may now appoint a person to be the child’s guardian on the death of the appointing guardian.  This appointment can be made in a Will OR in a form prescribed by the regulations of the Act (“Appointment of Standby or Testamentary Guardian”).

It is also possible, using the form noted in the above paragraph, for a parent or guardian who are facing mental incapacity or a terminal illness to appoint a ‘standby guardian’ who will become an additional guardian once all conditions set out in the form are met.  It is important to note that this form must meet certain execution and witness requirements to be valid.  For this reason, if you are using the prescribed form it would be advisable to consult a lawyer to ensure it has been properly executed. It is also vital to note that this standby guardian will also become the child’s guardian on the death of the parent or appointing guardian, despite any other instrument (ie: Will) made by the parent or appointing guardian.  This means the appointment of the standby guardian will take precedence over any appointment made by a Will – even if the Will was made after the appointment of the standby guardian.

For our clients who are separated or divorced from their child’s mother or father, further consideration should be made as to what parental responsibilities each parent has coming out of the divorce or separation with respect to each child.  An individual may only appoint someone to take over the rights that they have with respect to each child (ie: if, for example, there is split parental responsibilities between Parent 1 and Parent 2, Parent 1 can only give the parental rights that he or she has to a new guardian). We recommend consulting your family law lawyer in determining guardian appointments in these scenarios.

I am often asked – what happens if I don’t appoint a guardian?  This can be, depending on the circumstances, a complicated question to answer.  But the general short answer is that if there is one or more surviving guardians who are also the parent(s) of the child, each of the surviving guardians continues to be the guardians of that child (unless an agreement or court order otherwise provides).  If the child has no surviving guardian then a director under family services of the government becomes the personal guardian of the child, and the Public Guardian and Trustee becomes the property guardian of the child.  For this reason, anyone who has guardianship of a child should name a guardian in their will (or in the form) or could risk the guardianship being transferred to the government.

In considering who to appoint as a guardian it is important to note that the parent or the appointing guardian must consider only the best interests of the child.  This often entails considering who the child is close to or has a relation to, who you trust with your most important person in the world, the location of the potential guardian and what that potential guardian has going on in their life.

If you need further advice on appointing guardians or other estate planning matters, contact our wills and estates team at Touchstone Law Group LLP – we are here to simply the complicated!

Author: Jennette Vopicka

This information is general in nature only. You should consult a lawyer before acting on any of this information. This information should not be considered as legal advice. To learn more about your legal needs, please contact our office at (250)448-2637 or any of our lawyers practicing in the area of estate planning and estate administration at the following: