It is unfortunately common for people, particularly young adults, to neglect putting in place estate and incapacity planning documents. As we have discussed in a previous post, most adults would be well advised to put an enduring power of attorney in place. Not having one can have unfortunate and expensive consequences. Today however, we will be talking about another aspect of planning that can be particularly important for adults who have young families; planning for guardianship of one’s children in one’s Will.
In British Columbia, the Family Law Act permits one to use one’s Will to appoint a guardian or guardians who will take on parental child rearing responsibilities if one dies. It is important to note that the person who has been appointed as guardian of the child may not be the same person who is put in charge of the child’s financial affairs, for example, a trustee may be appointed to manage the child’s assets; this topic will be discussed further in a future blog post.
What happens if no guardian is appointed?
If one dies without appointing a guardian for one’s child but the other parent survives and is also a guardian of that child, the surviving parent would assume responsibility for parental responsibilities. However, if one dies and one’s child has another parent but that other parent is not a guardian, then the surviving parent would have to apply to court for a guardianship order if not named as guardian in one’s Will.
If no guardian is appointed in a the Will(s) of a child’s parent(s) and the death of a parent or parents leaves that child without a guardian, the Director of Child, Family and Community Services would become the guardian of the child until someone else is appointed by court order. This is an outcome that few parents would want for their children or for the loved ones who might wish to take on the care of the child. Fortunately, this potentially distressing and expensive outcome can usually be easily avoided by expressly appointing a guardian in one’s Will.
Appointing a guardian in a Will is not the only way of appointing a guardian. There are other planning documents that can be put in place to appoint a guardian to step in if one dies or is seriously ill. This topic will be discussed further in a future post. Check back over the next few months for more information regarding planning for one’s children in the event of one’s incapacity or death.