Guardianship and Estate Planning

When parents of young children meet with a lawyer to discuss Estate Planning, their first concern is usually about guardianship of their minor children – in the unlikely and horrible event that both parents pass at the same time. A Last Will and Testament (Will) allows parents to choose the guardian of their child and set out the financial support and living arrangements that they wish for their child (under 19 years of age in BC).

To handle the children’s living expenses, families can create a Trust. This ensures that their young children have access to all the financial support that they require to preserve their present lifestyle including attending the same school, extracurricular activities, and so on, with the oversight of a Trustee who will ensure that spending, by the young child and for their child, are reasonable.

Under BC’s Family Law Act, “guardianship” means the rights and responsibilities of caring for and raising a child, and such rights and responsibilities generally belong to parents only and guardianship does not simply pass to a surviving family member automatically. To ensure that your children are placed in the care of your preferred family member or friend, parents must designate a guardian in their Will.

Without a will, the court may need to appoint someone to look after the minor children and this may result in your child having to make big additional adjustments, such as relocating to a different community, changing schools, and being separated from their friends.

Under the Family Law Act, upon the death of one of the parents, where both parents are guardians, the surviving parent becomes the sole guardian.  For parents who are separated or divorced, if the surviving parent remains a guardian of the child, the surviving parent becomes the sole guardian.

Talking to lawyer about your unique Estate Planning needs should not be limited to asset division because you may be, unexpectedly, leaving behind something even more valuable than money.