Appointing a Guardian for Your Children in Your Will

Written by: Dina Nikseresht

For every parent, one of the most important decisions to make in your estate planning is choosing who will care for your minor children if you pass away. Appointing a guardian in your will ensures that your children are left to be raised by someone you trust and want to take on that responsibility, rather than someone chosen by the court.

Here’s what you need to know before appointing a guardian for your children:

Passing Without a Guardian Appointed

When both parents pass away and no guardian has been appointed in a will, the decision is left to the court. A judge may choose someone that they believe is in your child’s best interest. However, this appointment may not necessarily align with your intentions.

Who Can Be Appointed as a Guardian?

The person you appoint as the guardian for your minor child (under 18 years of age) must:

1. Be at least 18 years of age
2. Be mentally capable of making decisions for the child
3. Be willing and able to take on the role

You may appoint a single individual or a couple, and it is highly recommended to also name an alternate guardian in cause you first choice is unable or unwilling to act.

Guardian of the Person vs. Guardian of Property

There are two types of guardianship:

1. Guardian of the Person: This is the person responsible for your child’s day-to-day care such as housing, education and medical decisions. The appointment of a guardian of the person lasts for 90 days after your death, during which time the appointed guardian must apply to the court for permanent guardianship. The court has final authority in appointing the guardian of the child based on the child’s best interest. However, the wishes of the parent, as expressed in their will, are given strong consideration in the court’s decision.
2. Guardian of Property: This is the person responsible for managing any money or property your child inherits. Unlike guardianship of the person, you cannot appoint a guardian of property in your will unless you are already the legal guardian of the child’s property by court order. Parents are not automatically the guardian of property for their children. If your child received more than a small amount of money (typically over 35,000) a guardian of property must be appointed by the court.

Key Considerations before Choosing a Guardian

Here are some points to consider before selecting the guardian of your children:

1. Does the person share your parenting values and beliefs?
2. Are they emotionally, physically and financially capable of raising your children?
3. Do they live in a location where your children could reasonably relocate?
4. Are they willing to accept the responsibility?

Once you decide on who you believe would be a suitable guardian for your children, it is important to discuss your wishes with the proposed guardian before naming them in your will. Taking the time to thoughtfully appoint you guardian in your will ensures that your children’s future is guided by your values and the people you trust the most.