Your most precious asset is your children. Naming a legal guardian for minor children is probably the most compelling reason for making a will.
Unlike temporary guardianship, the role of the guardian will continue until the child reaches at least major age. Parents have to put aside any thoughts of hurting somebody's feelings and decide what is best for the child when naming a person.
Sidebar: If you are here and are looking for information on adult guardianship then please follow the link to see our article explaining the differences between a guardian, conservator and curator and the legal avenues that can be pursued to take care of an elderly parent, for example.
If a parent is the sole guardian of a child, then such a parent may appoint a guardian in the event of that parent's death. This must be clearly stipulated in the single parent's will and only becomes effective when the parent passes away.
The parent may appoint more than one person as guardian and the appointed person(s) must expressly or appliedly accept the appointment.
If you do not have a will or your will does not make provision for a guardian, the Court will appoint a guardian-ad-litem for minor children. This person will represent the child (speak for the child because the child cannot do so) in any court proceedings that involves the child. A close relative would be a good choice as guardian ad litem or a lawyer could represent the child.
Note: Please refer to our guidelines on Writing a Will where you can find links to a selection of free legal forms for last wills.
For most parents the choice will be a relative or trusted friend. By law this person must be of major age. Apart from the basic needs such as food, shelter, health care and most importantly, a loving and caring environment, there are other considerations.
Education for Your Children: Will they need to change schools or change their form of schooling e.g. private vs. public schools, home schooling vs. formal schooling.
Religion: Does the guardian share your religion, morals and values.
Time and Ability: Is the guardian often away on travels or have a very demanding job and is he/she physically in good health to take on the responsibility.
Providing Stability: Depending on the age of the children, this may be quite a long-term situation. Is the guardian in a stable career and/or relationship or is there a danger of further upheavals for your children in the future. Although life has no guarantees you can judge by their track record.
You may also want to consider appointing only one partner of a married couple. Should they get divorced, it would be clear who was the primary intended guardian.
Financial Concerns: Although being a guardian can be a non-paying job, you must consider if your assets can provide for the care of the children.
If not, you need to consider if the guardian can afford to provide care should state child support not be paid on time.
Managing Property or Other Assets: If the guardian will also be managing any property you leave your children, you have to specify that in your will.
Alternatively you could name an additional (separate) person to manage property or assign that duty to the executor of your estate.
Co-guardianship can also be specified in the context of a Last Will and Testament and is generally done where a married couple are named as guardians.
Two unrelated people may agree to petition the court to be appointed as co-guardians. If there is no such agreement and more than one person wants to be appointed as guardian, then the court will rule in favor of ONE person and always with the best interests of the child the primary consideration.
Incidentally, the concept of 'best interest of a child' is based on international law.
NOTE: A situation may arise where co-guardians disagree on an important matter. For example:
If one guardian withholds consent unreasonably then a court order can be obtained by the other so one guardian can act without the other's consent.
There may also be a situation where the guardians get divorced with the ramifications thereof.
The solution could be where one person is named as guardian and the second person as an alternate, in case the first named cannot fulfill the role for whatever reason.
This will also allow for one person to be the sole decision maker for a child.
You therefore need to consider the above and the appointment of guardian(s) from every angle.
It will also be of benefit to you to review the legal requirements, duties and responsibilities of a guardian.
As an aside, consider this for a moment too:
A parent may have the need to be appointed as a legal guardian of his/her own child. This could happen because the child may inherit assets and does not have the ability to manage the inheritance as yet.
By setting up a legal guardianship the parent then has a fiduciary duty (a legal obligation) to manage the assets to the child's sole benefit.
Having made your choice, you must discuss it with the prospective legal guardians to confirm their willingness. Give him/her time to think about it before they commit.
Then go through the whole process again in order to name an alternate - should circumstances prevent your first choice to act as guardian or he/she is not willing to take on the responsibility anymore when the time comes.
You need to review your choice of legal guardian appointed in your will from time to time. You may have appointed your parents as guardians at a time when they were in good health, but that may have changed. Or your very dear friends whom you've appointed may have moved away to another province or even another country.
It can be an easy or very hard task to name a legal guardian for your children. The important part is that you make a will and let your choice be known.