Guardianship and Your Will – The Toughest Clause of All

By Vanessa DeDominicis

Deciding who will take care of your children in the event that you and your spouse perish is by far the toughest decision couples have to make when it comes to deciding to do their Wills. It is often the reason that couples delay doing their Wills, either because they cannot agree who their children will go to in the event of their demise, or they simply just do not want to think about it.

Putting this type of matter on the back burner is dangerous. Without your voice in your Wills as to who you want to raise and care for your children if you and your spouse both pass away, it is extremely difficult for those left behind to sort things out when you are gone. It gives them no guidance, no direction and can cause a large rift between grandparents and families as a whole, leaving your children to feel argued over and scared to take sides. They may even end up with a family member who you never really wanted them with anyway. Yes, it is very difficult to address, BUT it is much better that YOU do it now while you are living and know what’s best for your children, than leave them to be fought over in a lengthy legal battle after you are gone.

When deciding on guardians for your minor children, I have a few general tips to offer:

  1. Avoid appointing married couples as joint guardians. With the divorce rate being so high (even if everything is peachy when you appoint the couple), what if they divorce after you and your spouse pass away and your children become part of a custody battle in their divorce?
  2. Choose someone that both you and your children have a close relationship with. If the children are old enough, you should be able to see who their relationship is strongest with and who would be most appropriate for them;
  3. If possible choose someone close by to avoid the upheaval of a province change (in an ideal world);
  4. Include a clause to direct your guardian to foster healthy family relationships with the entire family, such as:
  5. If X is acting as guardian of my minor children, they will have the right to decide on the residency of my minor children, and it is my wish that X actively encourages, maintains and fosters healthy and on-going relationships with my extended family.

  6. Your Estate can be put into Trust for your minor children in the event that you and your spouse pass away. You can choose a different guardian to the Trustee for your children’s Trust, so that there is always a “check-stop” for the use of the Trust money (which can usually be used by the Trustee for the child’s “health, maintenance, welfare and education”). The Trustee has a considerable amount of discretion to decide what this money can be used for, within those parameters. The Trustee and guardian can work together for the benefit of the child. A clause can also be included in your Wills to ensure that your guardian does not suffer financially as a result of looking after your children, as follows:

“I should like my Trustees to ensure, to the extent that it is reasonably possible, keeping in mind the funds at their disposal and other relevant matters, that no guardian of any infant child of mine suffers any financial burden by reason of anything she may do in the course of this guardianship whether or not the act in question falls strictly within the scope of her duties as guardian. I express the hope (but without imposing any trust or binding obligation) that my Trustees will exercise any powers of maintenance and advancement or any similar powers which they may have, by statute or under my will, in regard to my child in such a way as to ensure that no such burden or loss is suffered. I trust that the guardian will accept that it is my wish that these powers be exercised in that way.

Hopefully these tips can overcome some of the daunting issues surrounding the guardianship clause in your Will. More young couples need to do their Wills and I hope that reading this will convince them to come in and get this done!

This is provided as information ONLY; it should NOT be construed as legal advice. You should consult with a lawyer to provide you with specific advice for your own situation. For more information on estate planning/incapacity planning and to discuss your specific circumstances, please contact Vanessa DeDominicis on 250-869-1140 or dedominicis@pushormitchell.com. Vanessa practices in the area of Wills and Estates at Pushor Mitchell LLP in Kelowna and would be more than happy to assist you.