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Guardian FAQ sheet

Guardian FAQ sheet

by | Mar 8, 2022 | Wills & Estates

What does it mean to be a guardian?

As a guardian, you are legally responsible for the minor child(ren). A guardian will put the needs of the child first.

What factors should families be considering when choosing a guardian?

  • Religion – does the guardian’s morals and values align with you?
  • Education – what type of education do you hope your child will have?
  • Health – what are your wishes for your child’s healthcare? What sort of lifestyle do you want for your child?
  • Financial fitness of your guardian – does your guardian have the means to be financially responsible for your child? Many people leave a Trust to cover the expenses the guardian would incur. This can be left directly to the guardian or to another party as Trustee. The guardian and the trustee would then confer to decide how the funds should be spent for the benefit of the child.
  • Geographical location – does your chosen guardian live near your family? Where do you want you child to live after you are gone? What is in the best interest of your child?

How do you grant guardianship to a person?

You name a person through your Will. You should consult with your guardian and ask if they are willing to take on this important responsibility in the event of your death. No guardianship appointment is effective without the appointed guardian’s consent.

A guardianship appointment is only valid for 90 days after the parent’s death. Within that 90-day period, the guardian must apply to the courts for permanent guardianship.

The courts – not parents – retain the ultimate authority to appoint a guardian of a child. Of course, your wishes will be given a great deal of weight when making the decision of who should be named guardian. 

Why is it important to name a guardian?

In the event of your death, appointing a guardian will ensure that your minor child is taken care of. If you die without a Will that names a guardian of your child, the court will decide what is best for your minor child.

If you die without naming a guardian for your minor child, three things can happen:

  1. In most cases, a friend or family member, will come forward and ask the court to be named the guardian of your child.
  2. If there is a custody battle between multiple people who want to be named guardian, the court will decide who would be the best choice for your child.
  3. If there is no other option, your child will be placed in foster care until a guardian can be found.

If there are two parents, do both parents need to agree on a chosen guardian? What happens if a guardian cannot be agreed upon?

If there are two parents (current legal guardians), you both should have separate Wills. In each of your Wills, you should choose the same guardian. If you both choose different guardians and suffer an unspeakable tragedy and die at the same time, the court would have to decide what is in the childs’ best interest.

The Ontario Children’s Law Reform Act defines the rules for guardianship in Ontario.

 

This is for informational purposes only and does not constitute as legal advice. Please contact us if you have any questions.