This article applies to appointing a guardian for your child. To appoint a guardian for a different type of dependent (e.g. an elderly parent, a disabled sibling, etc.) please go to Part 2 – Wills and Adult Dependents.
Appointing a Guardian for your Child
It is always important to have a will, especially if you have any dependent children. More information on whether or not you need a will can be found here: Do I Really Need a Will?
In your will, you can appoint a guardian for your child. This is particularly important if there is no one else who would be a “surviving guardian” of the child, that is, another parent of the child.
However, if for one reason or another, you do not want to have a will, you can still appoint a non-parent guardian for your child (a person who will look after and who will be legally responsible for your child following your death) by filling out a form for the “Appointment of Standby or Testamentary Guardian” (also known as a “Form 2”) under the BC Family Law Act and Regulation.
In your will or Form 2, you can also appoint a second guardian (known as a “standby guardian”), who will act on your child’s behalf if your first guardian is unable or unwilling to care for your child. Some examples of a guardian being unable to act as a guardian include where the guardian faces a terminal illness or permanent loss of mental capacity.
In selecting a guardian, there are few things that you should keep in mind:
- Choose someone you trust and who will have your child’s best interests at heart:
An appointed guardian has a lot of power in deciding what may happen to your child. Will your guardian be physically and emotionally capable of taking care of your child? Will he or she respect your wishes in the way in which you would like your child to be looked after?
- Talk to your prospective guardian:
Ensure that you have your prospective guardian’s consent to appoint them as a guardian. It is not only common courtesy to have a discussion with your guardian before proceeding to write up your will or Form 2 but also a very sensible thing to do to avoid an unpleasant and difficult situation for your child after your death.
In addition to getting consent, you and your appointed guardian should be on the same page when it comes to taking care of your child, specifically where the child’s care and upbringing is concerned. Again, it is important to have these discussions prior to appointing a guardian.
- Ask your prospective guardian if they have or intend on making a will:
It is equally important that your guardian has a will in case something were to happen to them or to your standby guardian. The Form 2 under the Family Law Act will also work for the purposes of appointing guardians and standby guardians. If you have not appointed a standby guardian and something happens to the initial guardian, the initial guardian’s own will or Form 2 will be honoured in appointing the next guardian (and standby guardian).
In other words, if you have only appointed one guardian, that guardian may have the power to decide where your child ends up if something were to happen to them. You may or may not be fine with that outcome.
It is important for you to know that if there is no other appointed guardian (in your will/Form 2 or in your guardian’s will/Form 2), your children may be at risk of ending up in a home or with people you would never have chosen for them.
For example, if your child has no guardian and there is no family member available or willing to apply to court to become the child’s guardian, a director under the Child, Family and Community Services Act will become a personal guardian of the child and the Public Guardian and Trustee will become the child’s property guardian.
In our experience, most parents would not want their child to be taken into care by the Ministry if there is any reasonable way to avoid it.
In summary, we recommend that you:
- Choose people you trust absolutely to appoint as testamentary and stand-by guardians and ensure that you discuss your child’s desired care prior to appointing them.
- Ensure that both you and your guardian have up-to-date wills or a completed Form 2 which includes first and standby guardians.
If you have questions about guardians, wills or completing any forms under the Family Law Act (such as, the “Appointment of Standby or Testamentary Guardian”), please contact us.
- Do I Really Need a Will?
- Family Law Act Regulation
- BC Family Law Act
- BC Child, Family and Community Service Act