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Appointing Guardians for Minors

How to care for minor children after death is worrying for any Ontario parent. Axess Law can show you how to care for your children by assigning guardians for legal custody and their property after you die. Our estate lawyers draft Wills for any family situation.  

Protecting Your Children and  Their Property

You can appoint a guardian to take legal custody of your children and another to manage their property. You can even create a trust to manage inheritances you leave in your Will until your children are 18 or any age you specify in your Will. 

Here's how.

Arranging Legal Custody in Your Will

When you give a guardian legal custody of minor children after you die, they assume all the same rights and responsibilities you had as a parent. For that matter, you can appoint as many guardians as you think would be helpful. 

Your choice for guardian can live anywhere, inside or outside Canada. While moving your children may upset their routine, it's up to you to make choices you believe are in their best interests. Ontario family court and your next-of-kin may disagree, but guardians and minors old enough to speak for themselves also have a right to be heard by the court.

Appointments Are Temporary

Your appointees are temporary and must apply to the court within 90 days to get permanent custody. They may be turned down if a court decides it is not in your children's best interests or if your spouse or former spouse survives you. 

Normally, a non-custodial parent assumes custody. If you both die, the court expects your Wills to specify who should take custody of your children. Dying without a Will leaves everyone in a state of limbo.

Are You Sole or Joint Custodian?

Axess Law can draft your Will to specify your preferences for guardian, provided you have sole custody of your children. If you do not, you must consult with the other custodian(s) and reach consensus before finalizing your Will.

Arranging Guardians of Property

Your children's property is distinct from custody matters. Since you may not be the custodian of your children's possessions, your choice for guardian of property must be affirmed by an Ontario court.

Property can include money from grandparents, investments or other source of cash, such bequests from you. Your appointee can invest your children's money and decide how to spend it for our children's benefit, For more on that, see Providing Financially for Your Children. 

Steps for Appointing Children's Guardians

Consult With Your Spouse, Partner or Ex

Divorced, separated or single, wherever possible, discuss your wishes for your children's custody and care with their other parent. Reaching consensus is best, since if you don’t, a court can overturn your decisions and award custody to the surviving parent. Courts don’t make child custody decisions lightly. (See A Case of Temporary Custody for Ontario Grandparents if you’re unfamiliar with Ontario family law.)

Get Permission

Ensure those you propose to appoint legal custodian and guardian for property agree to assist your children. The court will overrule you if your appointees are reluctant or unwilling to be guardians.

Have a Backup Plan

Line up alternates in case, when the time comes, your choices fall ill, die or are unable to be guardians.

Suggest Independent Legal Advice

Suggest your appointees get legal independent advice so they understand their roles and responsibilities as legal guardian or guardian of property. 

Apply for Guardianship of Property

A court appointment is required to get guardianship of your children's property once you include it in your Will. Until then, even though you are their parent, you are not considered to have access to your own children’s property.

Your appointee must agree to be guardian and apply to the court within 90 days to get permanent guardianship. Since courts generally prefer a surviving parent be guardian, if it is important to show in your Will why you are nominating someone else.

Meet Court Deadlines

Ensure appointees understand the urgency of applying for permanent legal custody and guardianship of property. Decisions in your Will are only temporary until an Ontario court approves the arrangement.

What is in the Children's Best Interests

Courts heed their own judgment on who should be legal custodian and guardian of property. Be aware a judge may overturn your wishes in favour of a surviving spouse. Fortunately, courts are sensitive to children's wishes and usually ask children what they would like to have happen. Remember to include pets in your Will -- they can be precious to your children.

Post a Guardianship Bond

Your appointee may be required to sign a guardianship bond issued by the Ontario Public Guardian and Trustee. The bond will commit your guardian is carrying  out their legally required obligations and protecting your children's financial interests. The bond is meant to prevent neglect or theft by your children's guardian after you pass.

Providing Financially for Your Children 

Your Will can include bequests for minor children, but since they can't inherit money directly, you must choose how to distribute your estate until they are 18. 

Our lawyers prepare individual or mirror Wills and refer you to trusted legal partners for advice on how to:

  1. Pay funds in trust to a surviving parent(s), for amounts under $10,000.
  1. Pay money into the court -- an accountant for the Ontario Superior Court  of Justice will manage and invest their money until they turn 18.
  2. Pay it in trust to a court-appointed guardian of property you have named or the court has selected.
  3. Create a trust that holds your children's money -- the trustee, who can be your estate trustee or someone else, will distribute money to your children's guardians as needed

Any option you choose has pros and cons. 

For example, leaving money in trust with a parent is easy, but results in only limited funds being available. 

When you choose option 2, your children can withdraw their money when they turn 18. But they will have no access to it until then and the court will charge a 3% fee on any investment income or payments made to guardians before then. A care and management fee will also be charged. 

Giving their money to their guardian of property to manage can be a good option, provided your choice for guardian is honest and prudent. Singer Barry White’s children found out just how complicated that can be. You can avoid their fate by stating how you want the guardian to use your money.  

Large bequests are best managed through a separate trust.

Making a Testamentary Spousal Trust

As a final gift, you could ensure any remaining assets in your Will left to a surviving spouse go to your children after your spouse passes on. Your estate residue, as it is called, could be a nifty nest egg for their future.

Create an Estate Plan By Video Call

You can plan your Will and estate by video call anywhere in Ontario, although you will need to arrange to sign and have your Will witnessed in person. Appointments can be arranged 7 days a week, day or evening, at our open law offices, Toronto area and Ottawa. Just call toll free to 1-877-402-4207 or 647-479-0118 in Toronto or use our online booking form.

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