Guardian for your children – How to name a guardian in your Will.

How to Choose a Guardian for Your Children

One of the most important things which you need to consider when you are making your Will is how to choose a guardian. They will take care of your minor children in the event of your death. This really isn’t something that anyone ever wants to think about, but it is one of the most important decisions that you need to make. No one likes to think of their own mortality. However, making a Will and appointing a guardian is one of the most caring things that you can do for your minor children.

If you do not choose a guardian for your children and both parents die, the court will have to appoint one. This will usually be a willing volunteer. However, you really don’t want to leave something so incredibly important to chance. A judge can appoint whoever they want to. This person could be your worst nightmare, but a judge may have of way of knowing that if you haven’t made your wishes clear.

It is obviously a much better idea to have gone through the thought process yourself. You want someone of your choice as a guardian. This is definitely not something that you want to leave up to a judge to decide. You can so easily avoid this problem by appointing a guardian in your Will. Do not put off the decision because you do not know how to choose a guardian. It is an important question, but you can break down the process into steps to make the decision less stressful.

What is a Guardian?

If a guardian is appointed and both parents die, they gain all of the rights and responsibilities of a parent. They step into the shoes of a parent.

A Guardian Does Not Have to be a Relative

Sometimes it is obvious that Uncle Jack should be a guardian for your children. Other times there just isn’t a relative who is a good choice. Always consider friends as well as family when you are thinking about choosing a guardian. There may be many good reasons why you should choose a friend rather than a relative.

Many people do not live close to family. If your children are already at school, they may have to change schools if they needed to move to live with a relative. Friends are more likely to live close to you.

You may not have a relative who is of parenting age. Or perhaps your sibling really doesn’t want to take on your five-year-old. Always consider whether a friend may be a better choice.

What Should You Consider When Choosing a Guardian?

You really should not start out trying to find the perfect match. It is likely that no one will be the perfect guardian, just as you probably aren’t the perfect parent! Stop looking for perfection and you can take some of the pressure off about the decision of who to appoint.

It is a good idea to make a short list of people that you want to consider. Then ask yourself some simple, practical questions. These will help you with the decision of how to choose a guardian.

Key considerations

Age

How old are the candidates? Will they most likely be in good health until your children reach adulthood? Elderly grandparents may have the skills needed, but not be able to carry out the duties of a guardian as they may not be in good health.

Family situation

Do the people on your short list have children of their own? You may think that your sister is the perfect person to appoint as a guardian, but she has three children under age five. Will she really want to take on your brood as well? Think of the practicalities of raising that number of children in one house. If your possible guardians do not have children, would they really be able to juggle a career and a family?

Location

Where does everyone live? You need to think about how appointing a particular guardian may impact on the practical details of where your children would live. Would they need to move hundreds of miles to an unfamiliar area? They may be settled in school so a change would be disruptive.

Social views

What are the potential guardian’s views on big issues such as religion and education? When you are considering how to choose a guardian it is very important that you pick someone who is closely aligned to your views on major issues.

Finances

Are the potential guardians financially secure? You may think that your brother would make a perfect parent, but he tends to live a life of going from one job to the next. You will make financial provision in your Will for your children, but you do have to give consideration to how that money will be used. If the guardian that you appoint is not financially able to support your children with even the basics, any money that you leave to them may be used up very quickly. There has to be a balance. However, you should not appoint someone without thinking about this question. Do not appoint someone with a one-bedroom apartment to be a guardian for your four children without thinking about the consequences!

Do The Potential Guardians Agree to be Appointed?

This may seem like an obvious point, but it can happen that one day someone wakes up to discover they have just become responsible for a couple of extra children! Make sure that you ask if they agree to be guardians.  If they refuse do not be offended. It is a big thing to ask.

Things Can Change

Choosing a guardian for a five-year-old is a very different matter to choosing one for a teenager. It can seem like a daunting task when you are trying to choose who would be the best guardian for your children. You may be making a decision which has to last 18 years into the future. Your 65-year-old parents may not be in good health when they are 70. Maybe your sister doesn’t want to take on another couple of kids. Your brother may have moved to Australia. Circumstances change and it may be impossible to choose the ultimate guardian to fit an 18-year time frame.

There are a couple of solutions to think about if you really cannot decide how to choose a guardian right now. The first alternative is to choose the best guardian for right now, but resolve to change it is circumstances change. This has the disadvantage that you actually have to take action to change the appointment. A second idea is to appoint a group of people who will decide who is the best person to be a guardian should the worst happen. You can then leave the decision of how to choose the guardian to this committee of trusted friends and family. This won’t be the perfect solution for everyone, but it is worth thinking about.

Using LegalWills.ca to name your guardians

When you use an interactive service like LegalWills.ca you are are able to enter your family details including the age of your children. If your children are not adults, then the service prompts you to name a guardian for the children. It then asks you to name a backup (alternate).

Guardian in a Will

You are also able to include a reason for the appointment, and the Last Will and Testament then includes this explanation.

Later on in the service, you have the opportunity to set up a Trust for each minor beneficiary.

The Most Important Thing is Taking Action

It is always difficult thinking about matters relating to your Will. It involves thinking about your own mortality and most people want to avoid this at all costs. However, making a Will and appointing a guardian is essential for everyone. Do not be put off by thinking that you do not know how to choose a guardian. By following the simple steps that we have given here, you can find a solution which your children will thank you for.

Tim Hewson

President and CEO at Canadian Legal Wills
Tim Hewson is one of the founders of LegalWills.ca.

He has over 19 years of experience helping people to write their Will and other estate planning documents. He has been interviewed by many of the major news media outlets including CTV, Global News, The Toronto Star, and other leading Canadian publications. He has also contributed to a number of financial planning books.

Throughout his career, Tim has written extensively on the subject of Will writing and estate planning.
Anonymous

2 thoughts on “Guardian for your children – How to name a guardian in your Will.

  1. A Aoudeh A Aoudeh says:

    Wondering how we can direct in the will that an payout annuity be set up for the guardian and minor children. Is this done by the executor?

    • Canadian Legal Wills Canadian Legal Wills says:

      Thank you, this is a great question. You cannot leave something to one person for the benefit of another person. You cannot leave a sum of money to a legal guardian to fund the upbringing of the child. You either leave the sum to the guardian or you leave it to the child. Otherwise, somebody else would have to police the spending of that inheritance to ensure that it was only used for the child, and there are some grey areas like family holidays or home renovations that could be paid out of the inheritance “for the benefit of the child”.

      The correct approach is to leave the inheritance to the child. It would then be kept in trust and managed by a trustee. The guardian can work with the trustee to release funds for the benefit of the child. With this approach, the needs of the child are addressed, but there is also accountability between the guardian and trustee. The funds can be used to help the child when they are still young, but with a view to protecting the assets in the trust so there is something left for them when they become old enough to receive the trust outright.

      The guardian would have access to the trust, but only through the trustee. The Trustee will also be given the discretion to hand the trust to the guardian if they feel that this is the appropriate course of action.

      You can certainly also leave a bequest to the guardian as a lump sum. You are free to do this, as you would for any other beneficiary, but it is for the guardian, and they can use their inheritance however they wish.

Leave a Reply

Your email address will not be published. Required fields are marked *