Looking After Your Little Ones - Appointing a Guardian

(November 2000)

by Del Elgersma

One of the most difficult decisions for parents is choosing a guardian for their children. Most of us do not like to think about our death, especially if we have young children who would be left behind.

Many parents don't choose a guardian because they don't want to think about the possibility of dying before their children are grown. Others put off the decision because they can't agree on who the guardian should be. In doing so, they may be leaving open the possibility of costly custody battles and further trauma to their children.

In B.C., with some exceptions discussed below, a parent can appoint a guardian for children under 19 years in a will. For parents with young children, this is one of the most important reasons for making a will.

There are two types of guardians:

1. the guardian of the person of the child - who has custody of the child and is responsible for the child's health, education and upbringing
2. the guardian of the estate of the child - who manages the assets of the child

Often the guardian of the person and of the estate is the same person. However, many parents appoint a separate trustee in their will (who is usually also the executor of the will) to manage and disburse the child's share of the estate.

The trustee should be someone with common sense and sound judgment. Being a financial wizard is not required, since the trustee can hire a professional investment advisor if necessary. The guardian of the person of the child should be someone who shares your values and ideals.

Not every parent is able to appoint a guardian. In order to appoint a guardian upon death, a parent must have been the child's guardian while the parent was living. The law about guardianship is explained in the following scenarios:

Parents together
A mother and father are joint guardians for so long as they live together. On the death of one parent, the surviving parent becomes the sole guardian. On the death of the surviving parent, the guardian will be the person(s) appointed by the surviving parent.

Parents apart but married or previously married
If a mother and father are or were married to each other but are living separate and apart, they are joint guardians of the estate of the child, but only the parent with whom the child resides is guardian of the person of the child.

As a result, if the custodial parent dies first, the guardian of the person of the child will be the person appointed in the custodial parent's will. The surviving parent will become the sole guardian of the estate of the child, but will not be the guardian of the person of the child unless appointed by the custodial parent.

In blended families, where children of different parents are living under the same roof, the death of one of the parents in the blended family may result in an unexpected, but forced, separation of the children if guardianship appointments were not updated.

If a mother and father are divorced, the parent granted custody in the divorce proceeding is the sole guardian, unless the court otherwise orders (generally the court will order joint guardianship).

Parents apart and never married
If a mother and father were never married and are living separate and apart, but previously lived together with the child, they are joint guardians of the estate of the child but the custodial parent is the sole guardian of the person of the child, as above.

Parents never together
If a mother and father never lived together with the child, and were not married during the child's life or 10 months before the child's birth, the mother is the sole guardian unless the court otherwise orders.

Of course, each of these scenarios is subject to what the court may order, based on the best interests of the child. In addition, in some cases, parents may make a written agreement providing that they are joint guardians or that one of them is the sole guardian.

If a child has no guardian, or the person appointed under a will is unable or refuses to act as guardian, the Public Guardian and Trustee is the guardian of the estate of the child, and the Director under the Child, Family and Community Service Act is the guardian of the person of the child, until a court otherwise orders. For this reason, it may be a good idea to appoint an alternate guardian in case your first choice is not able to act.

If you have been putting off the appointment of a guardian for your children, please use this information to get your affairs in order. We would be happy to provide further guidance.