One important reason to make a Will is to appoint a guardian and custodian for your minor children, in case you pass away before they reach the age of majority (18 in Ontario).
What Can You Do in Your Will?
Many people assume that when you name a guardian and custodian in your Will, that is the end of the story. However, this is not the case.
Under the Children’s Law Reform Act, a person can make a Will which appoints a guardian and custodian of minor children. You may also appoint an alternate guardian in the event that the one appointed cannot act. However, the appointment is considered temporary as it is effective for a period of 90 days from the time of your death. After this period, the person or persons will need to bring an application to the Court to be appointed for permanent guardian.
Despite this safety process of your wishes, the guardianship clause in your Will serves as evidence that the person or people you have named are who you want to be the guardians and custodians of your children. This can be especially helpful in a large family where several people may otherwise step forward as potential guardians, or where the guardian you would choose may be a friend or more remote family member. While not determinative, the Court will give significant weight to your guardianship wishes as stated in your Will.
Applying for Guardianship
To become a permanent Guardian, the applicant must bring a Court application to be appointed. The application is essentially to demonstrate to the Court that the applicant is the appropriate Guardian for the child or children, and has the means, willingness, and ability to act in this role.
Before being appointed, the proposed guardian must submit a guardianship plan to the Court, explaining his or her plans for looking after the child and the assets left to the child.
The Estate Trustee (if not the same person as the Guardian) will work with the Guardian to make assets available in accordance with the management plan.
Some people decide to leave gifts to their guardians as a way to thank or partially compensate them for taking on this role. This is permissible and there is no limit on what you can do.
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