No one likes to spend time thinking about death, especially if you haven’t yet reached those golden years and you’re busy enjoying life with your young family.
However, in reality, that’s when it’s most important to give serious thought to what would happen to your children if you – or you and your spouse/partner – die tragically in an accident or due to 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 what day will be the last for us. As grim as that sounds, that’s 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, put 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?
Quite simply, 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’s 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.
Choosing a guardian
Some parents know immediately who to appoint as guardian for their children should there be a sudden or unexpected death. However, others must give it a bit more thought but, always, it should be discussed at length with the person or persons you are considering.
For example, if you’re considering your single brother because you and he have always been close and he loves your children, that might be a good idea, but it might not. You should consider questions like: Does he want/has children? Does his lifestyle support being 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 any more dependents, physically or financially.
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. But regardless of who you select, a lengthy discussion about what guardianship is essential to making the right choice. Don’t settle for a quick “yes”. Instead, talk it out before you put name to paper.
Officially naming the guardian
In British Columbia, you must have a testamentary document (i.e., a will) to specifically state your last wishes for 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.
BC Notaries can draft estate planning documents, including wills, powers of attorney, and representation agreements for this purpose. Though we do not offer legal advice on family law, we can indeed (and actually, must) offer legal advice on legal matters that we practice (i.e. estate planning & real estate law). Therefore, we can prepare and register the estate planning documents (i.e. Wills) that set in stone who will take care of your children should you pass away while they are still minors.
It’s 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, and while it’s unlikely that the court would choose a perfect stranger – the applicant must prove a relationship with the children and provide a care plan – it 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, Lilian Cazacu, Notary Public can assist you in completing these documents. For more information or to confer with a member of our staff, call 604-427-4279 or use the contact form on this website or (if you are ready to fill out our Wills Questionnaire), please follow the link below and submit the Questionnaire.