Have you ever thought about what would happen to your children if you were no longer around?
It’s a tough question that many couples and individuals postpone answering. However, addressing it now in a will can provide the peace of mind that if something happens to you, your children will be cared for.
The best solution is to name a legal guardian in a will that is properly drafted by an estate planning lawyer.
That way, you will have the assurance that a suitable person of your choosing can be authorized to take care of your children rather than requiring the Alberta family courts to intervene.
The decision of whom to name as guardian is a crucial one that should not be rushed. So, let’s take a look at the process of naming a legal guardian and the criteria you should consider selecting the right person or people.
What is considered a legal guardian in Alberta?
A legal guardian has the considerable responsibility of ensuring the child’s well-being and that basic needs are met (food, shelter, clothing and medical care). He or she must also look after the following matters:
- Caring for and guiding the child’s physical, emotional and psychological development.
- Providing financial support as required.
- Making the key decisions about the child’s cultural, linguistic, religious and spiritual upbringing.
- Deciding about the child’s education.
- Deciding where the child will live (and with whom).
- Making day-to-day decisions that affect the child’s care and daily activities.
- Providing consent for the child’s dental and medical care.
- Providing consent for legal purposes and representing the child in legal matters.
- Providing consent for the child to marry (if aged between 16 and 18)
In Alberta, a guardian can be appointed for either minor children or adults over the age of 18 without the mental capabilities to make decisions for themselves.
With such significant obligations and responsibilities, it’s important to select a person who is up to the task.
How to name a new legal guardian of a child
Under Alberta law, the parents of a child automatically become the legal guardians. However, there are two ways to transfer guardianship to another individual:
- An appropriate guardian is appointed by a judge at the family courts
- A replacement guardian is named in a will written by the child’s parent or legal guardian
Even if you, as the parent, name a guardian in a legally valid will, the decision still requires approval by a judge before it is enforced by court order. It is not legally binding until this approval has been granted.
Within the family law system, the best interests of the child are the main determining factor in court decisions. Circumstances can change between the writing of the will and the death of the parent/guardian.
Can you name more than one person as the guardian of your child?
If you decide to name a guardian in a will, it is usually best to name an alternative guardian in case the first choice is unable to fulfill the role.
Sometimes, too, more than one guardian can be named and responsibilities for raising the child can be divided.
For instance, someone looks after the day-to-day concerns of the child and another person is appointed to look after the financial and legal concerns. In such cases, it is very important to select guardians who can work together for the benefit of the child,
Bear in mind that if you select a couple in a relationship to act as guardians for your child, what happens if that relationship ends?
How to choose a legal guardian for your child
Often, the nominee for guardianship is a close family member with whom the child already has a relationship.
Some of the factors you need to consider when choosing a legal guardian for your child are obvious. For instance, having the means to look after the child and being willing and able to accept the responsibility.
However, there are other, less-obvious factors to consider too.
Factors to consider when selecting a guardian for your child
Here are the main recommended factors to consider before you confirm your selection(s) for guardian in your will:
EXPERIENCE IN CARING FOR CHILDREN
YOUR CHILD’S PREFERENCES
Usually, in Alberta, the court will consider the opinions and preferences of any child capable of expressing a meaningful opinion (this generally means of the age of 12 or over). If your child is of a suitable age, ask for an opinion.
THEIR FINANCIAL MEANS
THE HOME ENVIRONMENT ON OFFER
Can the proposed guardian offer the type of secure, stable and comfortable home environment that is necessary for a child’s healthy upbringing? Do they live locally to minimize the upheaval that the child would experience?
AGE AND HEALTH STATUS
Another important practical concern is whether your proposed guardian will be of a suitable age and health status to physically be able to act as a parent. Grandparents are popular choices for guardianship but are not always capable of fulfilling the role.
WILLINGNESS TO TAKE ON THE ROLE
ABILITY TO BE A GOOD ROLE MODEL
Is your proposed guardian a person that can guide and mentor your child? Do you share the same core values and beliefs? Some candidates with the practical means and willingness to act as guardians may have personality traits or beliefs that clash with what’s best for your child.
Trust is a central pillar of any relationship and the person you name in your will to act as guardian must have earned that. Just as important, could your child trust the individual and feel comfortable seeking advice and support for personal issues that arise for every child at times?
If you have more than one child and only appoint one guardian, you should also consider whether that person can provide the level of guidance and support required for each child. Or would the children need to be split up (often the worst-case scenario for parents)?
A child with special needs will also require extra consideration before naming a guardian as the responsibilities may not end when the child turns 18.
Once you’ve selected the ideal candidate(s), explain your decision, checking the candidate’s availability and willingness to act in the role if required. It should not come as a surprise to the person you name in a will.
What is a trust for a minor and how do I set one up?
Estate laws in Canada mean that you cannot leave an inheritance directly to a minor.
You can leave money to a minor child in your will but it will be kept in trust until he/she reaches a specified age (often 18 in Canada).
Trusts for minors are where a trustee takes care of financial assets on behalf of the minor until they reach a suitable age to make their own financial decisions.
A child with special needs may also be cared for financially through a trust if the parents are no longer alive.
If you’re considering writing a will and want to include guardianship provisions for your children, an experienced lawyer at Vest Estate Lawyers in can help you.
We currently have three offices across Alberta — Edmonton, Calgary, and Red Deer. However, we serve the entire province of Alberta. We also have the infrastructure to work with any of our clients virtually — even the furthest regions of Alberta.
We also have a dedicated intake form to help you get the ball rolling. Our intake team will review your specific case and advise you on the next steps to take as well as what to expect moving forward.
Our offices are generally open 8:30 a.m.—4:30 p.m., Mon—Fri.
WILLS and ESTATES LAWYER
Wilson McCutchan is a lawyer in the firm’s Calgary office. He advises and represents clients on a broad array of estate dispute and litigation matters.