Death, Guardianship of Children and Other Dependents

It is one thing to look after distributing your property when you die, but many people are also worried about who will care for their children and other dependents.  Parents of younger children often worry about making sure there is a guardian in place to care for their children, in case they have not reached the age of majority when the parents die.  There are two kinds of guardian that can be appointed, one for the children and one for the children’s property.  One guardian can do both jobs, but this has to be set out specifically if the parents want one person to have both guardianship of the child’s personal interests and guardianship of the child’s property.  The guardian is being given authority to step into the parents’ shoes.  This means that medical decisions, education decisions, religious upbringing and other important matters can be decided by the guardian.

Trouble arises, typically, after a divorce, when one parent wants to appoint someone other than the other biological parent as the guardian in the event of their death.  This can happen, for example, if the divorce has been bitter and one parent does not want the other to have custody in the event of their own death.  The custodial parent will often ask whether they can designate someone other than the access parent as the custodial parent for the child in the event of their death.  If there is a joint custodial arrangement, neither parent can designate anyone other than the surviving parent as guardian.  If you are a custodial parent and you want to appoint someone other than your child’s other parent to be the guardian of the child in the event of your death, you can do so by stipulating in your will who you want to have the role of guardian.  Make sure the person that you have identified accepts the responsibility.  That designation of guardianship will be valid for at least ninety days after your death, even if someone else decides to challenge the decision.  However, even if there is a challenge, the guardian should still apply to the court for full custody, as it will boil down to one thing and one thing only—what is best for the children.  The same thing will apply for guardianship of the children’s property.

Spouses should make their wills together and share them so that each knows what the other has provided.  This is not always possible, particularly if the couple has separated.  Some couples share all their information and make, for example, mutual wills, whereby they leave everything to each other, but in the event of a mutual disaster they leave it to the children or to some other beneficiary.  If the children are too young to receive the estate, then the parents appoint a trustee to act on their behalf.

Other couples, who are either very private or hostile, make their wills individually and say nothing to each other about what provision they have made.  You should be aware that provincial laws allow surviving spouses to choose to take what they are given in the will of the deceased spouse or to elect to take the amount they would have received if the couple had separated instead of one of them passing away.  This means that the treatment of a surviving spouse is the same as the treatment of a divorcing spouse.  You can well imagine the scenario where the spouses are not separated but have made wills that do not leave everything completely to each other.  If the surviving spouse does not like what they have received by way of the deceased spouse’s will, they can reject the will by electing not to take what is left to them.  This can, in turn, trigger a problem in the deceased spouse’s estate.  This can be particularly troublesome in situations of second marriages, where the deceased spouse intended to give away their property to children of a first marriage, only to find out that the second spouse has turned the estate plan on its ear.  The message here is that spouses should try to make their wills work together in order to benefit the children.