3. GUARDIANS

1. What is meant by ‘Guardian’?

A guardian in a last will and testament is a person or people who are appointed to care for a minor child or incapacitated adult after the testator’s death. The testator, also known as the will-maker, can appoint anyone they choose to be the guardian of their child or incapacitated adult. However, there are a few things to keep in mind when choosing a guardian, such as the guardian’s age, health, willingness to serve, and ability to provide a good home for the child or incapacitated adult.

If the testator does not appoint a guardian in their will, the court will appoint a guardian after the testator’s death. The court will consider a number of factors when appointing a guardian, including the child’s or incapacitated adult’s best interests, the wishes of the testator, and the availability and qualifications of potential guardians.

Often, children have more than one legal guardian, such as both parents. If one parent dies, the surviving parent remains the guardian of the children. However, if both parents die, the guardian of the children will be the person appointed in their will (subject to possible court proceedings).

2. What are the responsibilities of a Guardian?

Here are some of the responsibilities of a guardian:

• To provide a safe and loving home for the child or incapacitated adult
• To meet the child’s or incapacitated adult’s physical and emotional needs
• To make decisions about the child’s or incapacitated adult’s education, healthcare, and welfare
• To manage the child’s or incapacitated adult’s financial affairs

It is important to note that a guardian’s authority is not absolute. The court has the power to oversee the guardian’s actions and to make changes to the guardianship arrangement if necessary.

3. How do I choose the right Guardian?

Here are some tips for choosing a guardian:

• Choose a guardian who is willing and able to serve
• Choose a guardian who is a good fit for the child or incapacitated adult
• Consider the guardian’s age, health, and lifestyle
• Choose a guardian who shares your values and beliefs
• Talk to the guardian about your expectations for them

4. Should I consult a person before appointing as Guardian?

That would be a very good idea. Becoming the guardian of your child is a massive responsibility and you need to ensure the proposed guardian is up for the task. It is better to ask first and be rejected, than to propose and have them reject the role after your passing.

Remember, in Ontario, guardian appointments are valid for 90 days. Within the 90 days, the guardian must apply to the court for permanent guardianship. It’s important to know ahead of time whether they’re willing to take that crucial step. 

5. How to ask someone to be the legal guardian of my child?

Asking someone to be the legal guardian of your child is a big decision. It is important to choose someone who you trust and who you believe will love and care for your child as you would.

Here are some tips on how to ask someone to be the legal guardian of your child:

1. Choose the right person. When choosing a guardian for your child, consider the person’s age, health, lifestyle, values, and relationship with your child. It is important to choose someone who you believe will be able to provide your child with a loving and stable home
2. Have a conversation with the person. Once you have chosen a potential guardian, have a conversation with them about your wishes. Let them know why you have chosen them and what you expect of them as a guardian. It is important to make sure that the person is willing and able to be your child’s guardian
3. Put your wishes in writing. Once you have had a conversation with the person and they have agreed to be your child’s guardian, put your wishes in writing. This can be done in a letter of intent or in your will. It is important to have a written record of your wishes so that there is no confusion after your death

Here are some things to say when asking someone to be the legal guardian of your child:

• “I would be honored if you would consider being the legal guardian of my child, [child’s name]. You are the person I trust most to love and care for my child as I would”
• “I know that being a guardian is a big responsibility, but I believe that you are the best person for the job. You are kind, loving, and responsible. You also have a strong relationship with [child’s name]”
• “I have put my wishes in writing in a letter of intent and in my will. This will ensure that my wishes are respected after my death”

It is important to be honest and direct with the person when asking them to be the legal guardian of your child. Let them know your expectations and give them time to think about the decision.

Advantages of appointing multiple guardians:

• If one guardian is unable or unwilling to serve, the other guardian(s) can step in
• Multiple guardians can share the responsibilities of guardianship, which can make the job less overwhelming
• Multiple guardians can provide different perspectives and skills, which can benefit the child
• Multiple guardians can help to ensure that the child’s best interests are always considered

Disadvantages of appointing multiple guardians:

• There may be disagreements between the guardians about how to care for the child
• It can be difficult to coordinate decision-making between multiple guardians
• If the guardians do not live in the same area, it can be difficult for them to maintain a close relationship with the child

If you are considering appointing multiple guardians in your will, it is important to carefully consider the pros and cons. You should also talk to the potential guardians about your expectations and to make sure that they are willing and able to serve.

Here are some tips for choosing multiple guardians:

• Choose guardians who have similar values and beliefs to you
• Choose guardians who are willing and able to work together
• Choose guardians who live in the same area as the child, if possible
• Talk to the potential guardians about your expectations and to make sure that they are on the same page

7. What happens to children if both parents pass away without a will?

If both parents pass away without a will, the court will decide who will have custody of their children. The court will consider the best interests of the children when making this decision. Factors that the court may consider include:

• The relationship between the children and each potential guardian
• The wishes of the deceased parents, if known
• The stability of the home environment
• The ability of the potential guardian to provide for the children’s physical and emotional needs
• The children’s own preferences, if they are of sufficient age and maturity to express them

The court may appoint a guardian for all of the children, or it may appoint different guardians for different children. The court may also appoint a temporary guardian until a permanent guardian can be found.

If there is no family member or close friend who is willing or able to take custody of the children, the court may place them in foster care. Foster care is a temporary placement for children who cannot be cared for by their parents or other relatives. The goal of foster care is to help children find a permanent home, either with their family of origin or with another family.

It is important to note that the court has the final say in who will have custody of children if both parents die without a will. This is why it is important for parents to create a will and to appoint a guardian for their children.

Here are some tips for parents to avoid this situation:

• Create a will and appoint a guardian for your children
• Discuss your wishes with your spouse or partner and with your potential guardian
• Make sure that your will is up to date and that your guardian is still willing and able to serve
• Keep your will in a safe place and let your executor know where it is located

8. How do I ensure my pets are taken care of?

You can appoint pet guardians in the will and also set aside an amount of money for care of your pets.