Appointing a guardian is a key part of estate planning if you have dependents - whether children or pets. This article explains the different types of guardianship, what guardians are responsible for, and important factors to consider when naming one in your will.
What is a Guardian?
A guardian is someone you legally appoint to care for your minor children or pets in the event of your death. There are two main types of guardianship addressed in a will:
Guardian for minor children
If you pass away while your child is still a minor (usually under 18 or 19, depending on your province), a guardian is the person who would take over the legal responsibility of raising them. This is usually a trusted family member or close friend. Just a heads up - you can only choose a guardian for children who have already been born.
Naming a guardian in your will doesn't automatically make it permanent. That person can care for your child right away, but only for up to 90 days. After that, the court will step in to approve who becomes the legal guardian long term. If both parents with legal custody have passed away and no guardian is named, the courts will appoint one. Naming a guardian in your will ensures your preference is known and considered.
If you’re picking someone who lives in another country other than Canada, it’s a good idea to name backup guardians too. Sometimes travel or legal rules can make it hard for someone to step into the role, especially right away. Family courts ultimately make the final decision about guardianship based on the child’s best interests. But having a will that clearly outlines your wishes can serve as strong evidence of your intentions. For example, if your chosen guardian lives abroad, and you've indicated that you still believe this person offers the best home for your children, the courts will consider that when making their decision.
It’s crucial to discuss guardianship decisions with your spouse and agree on who should raise your children if you both pass away at the same time. If you have children together, you should appoint the same person in both wills. If each will names a different guardian, the instructions cancel each other out, and the courts will decide. In blended families without shared children, you can name different guardians for your respective children.
Responsibilities include:
Providing a stable home and daily care
Making decisions about education, healthcare, and upbringing
Managing any assets or inheritance left for the child (sometimes with the help of a trustee or executor)
When you assign a minor beneficiary, their inheritance will automatically be held in a trust with your chosen executor acting as the trustee. Willful's will specifies that the guardian can use funds for the reasonable care of the child/children. The executor/trustee controls the release of these funds. The will does not specify the exact amount the guardian will receive. The guardian can use allocated funds for expenses such as:
Schooling
Food
Clothes
Living expenses
Funds are released to the child when they reach the age specified in the will. For specifics around what is considered "reasonable" or detailed instructions on fund usage, consult a lawyer. Alternatively, discuss your wishes with your executor to ensure they understand your preferences.
You will be asked to fill out information about your children in Step 2: Your Family in Willful. This determines whether you need to assign a guardian for your minor children. In blended families, a step-parent can appoint a guardian only if they have legally adopted or have legal custody of the child.
In the same section, you will also be asked to list your child(ren)'s parent(s). This can be your partner, someone other than your partner, or N/A if no second parent exists.
Adult children do not need to be listed in the "Your Family" section. This step is specifically used to determine guardianship needs. You can still list adult children elsewhere in your will as beneficiaries or executors if you wish.
Guardian for pets
This person becomes responsible for the care and well-being of your pet(s) after you pass away. While pets are considered property under Canadian law, you can still use your will to express your wishes for their care.
Responsibilities include:
Housing and daily care
Veterinary decisions
Carrying out any care instructions or financial support provided in the will
The amount allocated for your pet's care will be provided to your chosen pet guardian by your executor (or liquidator in Quebec). This is treated as a specific gift (or legacy in Quebec) and is paid out before the estate’s residue is distributed to beneficiaries.
Willful does not currently support staggered payments for pet trusts. If you require that kind of structure, you will need to seek legal advice for custom clauses. Always talk to your pet guardian to ensure they understand how to best use the funds to care for your pet.
Who can be a Guardian?
A guardian must:
Be the age of majority in your province
Be mentally capable
Be willing and able to care for your child or pet
You can name:
A single person
A couple
Backup guardians in case your primary choice cannot take on the role
It’s important to discuss this appointment in advance. Make sure the person you choose understands the responsibilities and agrees to accept them.
In Quebec, the term for a guardian of a minor is tutor.
Key Considerations when Assigning a Guardian
When naming a guardian, consider the following:
Values and lifestyle: Choose someone who shares your parenting style, values, and approach to discipline, education, and lifestyle. This helps ensure your child is raised in a way that aligns with how you would have parented them.
Stability: Consider whether the person has a consistent and secure living environment, financial stability, and a dependable support system. A stable guardian can offer a sense of security and routine, which is especially important during a difficult transition.
Proximity and location: Courts prefer a guardian who is close to the child to minimize disruption and maintain continuity in their daily life. Consider whether your child or pet would need to move far from their current community, as this can significantly impact their emotional and social stability.
Age and health: The person should be in good physical and mental health, with the energy and capacity to raise a child or care for a pet. Consider their long-term ability to take on the role, especially if your child is young.
Willingness: Have an open conversation with the person you’re considering. Confirm that they’re comfortable with the responsibility and understand what’s involved. It’s important they feel confident and prepared to take on the role, should it become necessary.
You can also choose to leave written instructions in your will or in a separate letter to help guide your guardian on how you’d like your child or pet to be raised and cared for.