Testamentary Guardianship – What Happens After a Child’s Parents Die

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Nobody wants to think about their own inevitable death, but as a parent, it’s probably something that frequently crosses your mind:

What will happen to the kids if I die?

Where will they live? Who will take care of them? How can I be sure they’ll be safe?

It’s terrifying, but the thoughts don’t have to consume you.

Instead, you can create a will that answers these questions in the event of your death. In this will, you can choose a testamentary guardian – someone who you choose to take care of your children if you and/or your spouse die.

It’s sort of like a godparent, only it is legally recognized by the Canadian government.

How Do You Appoint a Testamentary Guardian?

It’s actually quite easy to appoint a testamentary guardian. Here are the steps:
Choose who you want to appoint
This can be one person, or a married couple, and they can be a friend or a family member.
Tell who you want to appoint that you want them to be the testamentary guardian to your children in the event of your death and/or the death of your spouse.
If you’re married or in a partnership with the other parent, this would be in the event that both of you die. The same goes for if you are separated and the other parent does not have any custody rights.
Make sure the testamentary guardian is willing and able to take on this responsibility.
Update your existing will or create a new will that declares who will be the testamentary guardian to your child or children.

Provided your will is legally valid, that’s all it takes to appoint a testamentary guardian.

You can have your will examined by our wills and estates lawyers to ensure it is legally binding. Give us a call or fill out our contact form to schedule an appointment.

Can I Appoint a Testamentary Guardian if I am Separated?

Things get a little more complicated if you are divorced or separated. Both parents need to agree (whether you are married or not) as to who you will appoint.

If you have full custody of your children and the other parent does not have custody or parenting rights, your will is the final word on the decision, regardless of whether the other parent agrees or not.

But if the other parent has parenting rights, you will both need to agree on a testamentary guardian in order for your choice to be valid.

Additionally, you cannot choose a testamentary guardian for your children in the event that you die and the other parent does not. In this case, the other parent will retain full custody of your kids, as they normally would.

Divorce mediation is a great place to start discussing these sorts of things. Together, with the help of a mediator, you and your ex can determine who gets custody of the kids if you both die.

Our family lawyers can help you with this process. Call now or schedule an appointment by filling out our contact form.

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