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Testamentary Appointments of Custody and Guardianship

Under the Children’s Law Reform Act, parents have an opportunity to appoint a custodian and guardian for their children in their Will. In this way, a Will offers a valuable planning tool for parents who are concerned about who will take care of their children and their children’s inheritance in the event of their untimely passing.

Distinguishing “Guardianship” and “Custody”

Having custody over a child means having care and control of a child. A custodian makes determinations such as where a child lives, which school they attend and other matters involving their general upbringing. On the other hand, a guardian is responsible for managing and caring for a child’s property. A guardian holds a child’s assets in trust until they reach the age of majority. Until then, a guardian usually makes discretionary decisions as to when those assets are spent for that child’s benefit. One person may act as both custodian and guardian.

What if parents don’t appoint a guardian or custodian in their Will?

A judge of the Superior Court of Justice will make that decision for parents on a permanent basis, since this Court is the ultimate decision maker when dealing with issues involving children. Until this is determined with finality, the Public Trustee and Guardian, in conjunction with the Office of the Children’s Lawyer, will be the custodian of a child and the Ministry of Children and Family Development will be their guardian. The assets of a child are held by the Accountant of the Superior Court of Justice until they reach the age of 18.

Limits to Appointing a Guardian and Custodian by Will

  1. Your appointment will be fulfilled only if you are that child’s only custodian or guardian. If someone else jointly has custody or guardianship, such as another parent, that other person will continue to serve that role unless both parents die contemporaneously appointing the same person(s).
  2. The person you appoint must agree to take on the responsibility of being the custodian or guardian since no appointment is effective without the consent of the person appointed. As such, it is important to ensure the person being appointed is willing and able to take on this role.
  3. The appointment expires 90 days after your death and a formal court application is required to determine who will have permanent custody or guardianship. In arriving at a conclusion, the Court considers the child’s best interest, the wishes of the parent as provided in their Will and the wishes of the minor, if they are mature enough to provide input, among many other factors.

If you have children under the age of 18, it is imperative that you have a Will appointing a custodian and guardian. You may also find it useful to prepare a Letter of Wishes which outlines specific instructions for your appointee. While a Letter of Wishes is not a legally binding document, it can serve as a useful guide which indicates your values and expectations for your child. Although your appointment is temporary, you will have peace of mind that your children will be cared for by someone you trust in the immediate days after your passing. Since this appointment is made by Will, it only takes effect on your death and you may revisit your decision from time-to-time as circumstances change. Remember, your Will can be modified or even revoked at any time prior to your death, as long as you have the necessary capacity.

The lawyers at Vakili Law Group have extensive experience in the areas of Real Estate and Wills & Estates. We offer insight, advice and guidance to advance your rights and interests. If you require assistance with drafting a Will, appointing a guardian or any other related matter, then feel free to contact one of the lawyers at Vakili Law Group to schedule your consultation.

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Bobby Vakili
Bobby Vakili
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