While some people postpone or don’t want to do their Wills because they don’t have “that much money”, one of the most important reasons to have a Will prepared is at least to appoint a Guardian for your minor children if you (or you and your spouse/partner) die tragically in an accident or due to a serious illness.
While we hope these sorts of things never happen to us, the fact remains that they do. We all know that “tomorrow” is a gift we get each day and that we can’t always predict which day will be the last for us. As grim as that sounds, that’s the reality, and it should prompt us to take the proper actions to protect those we love. Not only should we have a will in place even when assets are minimal, but it’s of the utmost importance to consider and appoint a guardian for any minor children that would be left behind.
What is a guardian?
Simply put, an appointed guardian is the person who will assume care of any children under 19, should you (as a single parent) or you and your spouse die before those children have reached adulthood.
If you are married and only one spouse dies, in most cases the surviving spouse becomes the sole guardian. However, a guardian may also be appointed if a single surviving parent is severely incapacitated by injury or illness and/or cannot properly care for his/her children. (This may require specific wording outside the traditional guardian provisions.)
It is also possible to assign that same person – or another person – the rights to manage any trusts that are left for your children, which is of the utmost importance.
How to Choose a Guardian?
Some parents know immediately who to appoint as guardian for their children should there be a sudden or unexpected death. However, for many other parents this is the biggest decision they must make regarding their Will and must give it a bit more thought. In any event, these details should be discussed at length with the person or persons you are considering.
For example, if you are considering your single brother because you and he have always been close and he loves your children, that might be a good idea, but not necessarily. Before making that decisions, you should ask yourself the following questions: Does he want children? Does his lifestyle support being/becoming a father?
Or, how about your sister – the one who has 4 kids? While you think it might be great for your children to be with their cousins should something happen to you, that sister may not be able to handle (physically or financially) any more dependents.
Often, drafting a Will that includes provisions for guardianship may mean looking outside of the family or beyond who you might have thought was the obvious choice. At the end of the day, regardless of who you select, a lengthy discussion about what guardianship involves is essential to making the right choice. Do not settle for a quick “yes”. Talk it out before you put their name down.
How to Officially Appoint a Guardian?
In British Columbia, you must have a testamentary document (i.e., a Will) where you can specify the person(s) who will care for your minor children in the event of your death (if you’re a single parent) or the death of you and your spouse.
Notaries Public in BC can draft Wills for this purpose. Though we do not offer legal advice on family law, as lawyer do, we can indeed help you prepare your Estate Plan, including a Will, Power of Attorney, and Representation Agreement. During these meetings, we always discuss these details and even may help you choose the right person who will take care of your children should you pass away while they are still young.
It is important to remember that if you DO NOT appoint a guardian and you (and your spouse) die suddenly, literally anyone can apply to the court to be the caretaker for your children. Those who apply do not need to be immediate family or related at all. Although it is unlikely that the court would choose a perfect stranger since the applicant must prove a relationship with the children and provide a care plan for them, it still remains a fact that the court may not choose the same person you would have chosen for this important job.
If you haven’t yet made a Will and/or appointed a Guardian for your minor children, LC Notary can assist you in completing these documents. For more information or to confer with a member of our staff, please call us at 604-427-4279 or use the contact form on this website.
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