This is a question that plagues parents when they do their Wills – often to the point that they don’t actually do their Wills. Perhaps knowing what the effect of including a guardianship clause in a Will is, parents wouldn’t let this issue stymie the completion of their Wills.
Parents commonly misunderstand their ability to name someone to be the guardian of their minor children after their death. [It’s actually called “the custodian” but most people don’t know this. Guardianship refers to the person who will control a minors property.] The assumption is that the natural parents of a minor child have the legal right to appoint the guardian of their minor child if they should die while their child is a minor (i.e. under 18 in Ontario). This, however, is not the case.
An individual who is the natural parent may, in their Will, appoint someone to be the guardians their minor children after their death. This appointment is, however, temporary only. In Ontario, the named person only has authority to act for a period of 90 days from the date of the parent’s death. Before the 90 days expires, an application must be made to the Court for an order formally appointing the person as the guardian of the minor children. In general, the application will be successful. However, the process is meant to give others the opportunity to come forward and take a position on the suitability of the person. In this way, the law seeks to protect the best interests of the minors.
It’s also worth saying that the appointment is only effective if no other person is entitled to the custody of the minor child at the date of the parent’s death. If there is a natural parent still alive at that time, it will be his or her Will (i.e. the Will of the second parent to die) which will be looked to for the proposed guardian. It is for this reason that the Wills of both parents should be consistent as to the proposed guardian. Where the parents are separated or divorced, the legal custody arrangements must be taken into consideration when contemplating your guardianship appointment.
Given the temporary nature of this appointment, the moral of this story is, don’t let this decision prevent you from completing your Will.
Corina S. Weigl