While lawyers and other professionals often suggest the making of a Will for estate planning purposes, the less well known but equally important purpose of a Will is the appointment of a guardian for your children in the case of incapacity or death. Under the Family Law Act, the concept of guardianship includes the rights and responsibilities of caring for and raising a child. The rights and responsibilities of guardianship generally belong to parents, but may also be granted to an individual of the guardian’s choosing in the case of incapacity or death, including a family member or friend. For many, the task of appointing an alternate guardian for one’s children is not one that they wish to consider. There is often a misconception that where both parents become incapacitated or die, a surviving family member will take over care of the child. Unfortunately, although this is often the eventual result, the process before this result is reached can be a bit more complicated. The rights and responsibilities of guardianship do not simply pass to a surviving family member. Rather, steps must be taken to ensure that the right person is granted guardianship of your children.
Typically, both biological parents are guardians of their children. However, there are a few circumstances in which a parent may not be the guardian of his or her child, including where a parent has never lived with or regularly cared for his or her child. Guardianship may also be terminated by the court in rare circumstances. Where there are two guardians, the death of one results in sole guardianship remaining with the surviving parent under the Family Law Act. However, where there are two parents but only one guardian, and the parent with guardianship dies, the surviving parent does not automatically become the child’s guardian. Unless the surviving parent has been appointed guardian of the child, the surviving parent must make an application to court for an order for guardianship, a costly and unnecessary process that can be avoided with proper planning.
Guardian in the Case of Death
In order to ensure that your children are placed in the care of a trusted family member or friend in the event of incapacity or death, parents must ensure that they have designated a guardian in the case of their inability to continue to care for their children. A designation may be provided in a Will or it may be made by way of Form 2 of the Family Law Act Regulations. Like a validly made Will, Form 2 must be signed by the guardian in the presence of two or more witnesses present at the same time.
Standby Guardian in the Case of Illness
The appointment of a standby guardian will apply in situations of illness and incapacity rather than death and may only be made in the prescribed form. This type of appointment will continue upon the parent’s death unless the appointment provides otherwise or the guardian revokes the designation while capable of doing so. Further, the designation has some additional requirements, including the identification of conditions that must be met for the appointment to take effect. The guardian(s) may also require that the designated person certify that the required conditions have been met. With a standby guardian, the child’s parent may remain capable of making decisions for the child, and may be limited only with respect to the physical care of the child. Accordingly, under this type of appointment, the designated person must consult with the parent to the fullest extent possible regarding the care and upbringing of the child. The appointment of a standby guardian is really the best option given its comprehensive and enduring nature. It is important to note that the appointment does not take effect unless the appointed guardian accepts the appointment, either expressly or impliedly by the person’s conduct. Most parents do not like to consider the possibility that they will be unable to care for their child at some point in their lives. However, the thought of one’s children being left in the care of the wrong person, someone who does not share the same values, beliefs and culture, may provide the encouragement needed to address this important issue. A guardian should be carefully selected with the best interests of the children in mind in order to ensure that in the unfortunate event that you are unable to continue to care for your children, the transition for them is as easy as possible.
For further information on the appointment of an alternate guardian or a standby guardian in the case of illness or incapacity, please contact Ms. Cassandra Drake.
For more information on family law issues, refer to the following resources:
- Alternative Dispute Resolution
- Division of Assets
- Child and Spousal Support
- Child Protection Issues and MCFD
- Custody and Guardianship
- Mobility Disputes
- Pre-nuptial and Cohabitation Agreements
- Tax Implications Upon Marriage Breakdown
- Valuing and Protecting Business Interests
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This article is intended to be an overview of the law and is for informational purposes only. Readers are cautioned that this article does not constitute legal or professional advice and should not be relied on as such. Rather, readers should obtain specific legal advice in relation to the issues they are facing.