Children are often the motivating factor behind having a Will drafted. A properly drafted Will provides a parent with the chance to speak from death and express their wishes with respect to custody of their minor children.
The following are some quick answers to some serious questions regarding the guardian provision of a Will. As you can imagine, the facts of each situation may impact the answer. As such, these are general answers only and are not meant to serve as legal advice relating to specific facts or situations.
- Can I appoint more than one person as guardian of my minor children? If so, do they have to be a couple?
Yes, you may appoint more than one person. No, it is not a requirement that they be a couple. That said, consider whether the appointment is practical. Are you naming your two siblings who do not talk, or two relatives who live in opposite ends of the country?
- Does the person I name become my child’s guardian no matter what?
No. A testamentary guardianship appointment is only effective for 90 days after the appointment is made. The guardian will have to apply to the court within those first 90 days if he or she wishes to have a longer term custody order in place. This requires him or her to provide to the court a plan for the care and raising of the child, disclosure of any previous family or criminal legal issues and any other information that may be relevant to the determination of the best interests of the child(ren).
Any other person is permitted to make an application at any time during the 90-day duration of the testamentary guardianship – or after it – and the court may award custody to that individual if it is found to be in the best interest of the child to do so. While the courts will consider the guardian provision evidence of the parent’s wishes, the best interests of the child will guide the court in determining who should have custody.
- If my spouse and I disagree on who to name, can we name different guardians?
Ideally parents will agree on who should be named as guardian; however, this is not always the case. Parents are permitted to name different guardians in their respective Wills. Should they choose to do so, the question that must be asked is whether both parents have custody of the minor child(ren). Entitlement to name a guardian flows from custody – a parent with custody of a child has the right to name a guardian in his or her Will.
Assuming both parents have custody, the surviving parent’s Will rules. For example, if mom and dad both have custody, and mom dies, dad now has sole custody. If he then passes away, the guardian provision found in his Will dictates who will be Guardian.
In the situation where one parent has sole custody of the minor children, the Guardian provision in the Will of that parent governs, regardless of the order of death. To demonstrate this let’s return to my earlier example. If mom dies first, her Will names an uncle as guardian of the minor children, and an order indicates that she has sole custody of the minor children, then even if dad is still alive, the child will go to the uncle, not the father, since there is an order indicating that mom has sole custody of the child.
If two parents with custody die at the same time and have different guardian provisions in their respective Wills, then only the guardians named in both Wills will be appointed. This could result in neither parents’ first choice being appointed as guardian of the minor children. For example, if mom names her sister and friend as an alternate, and dad names his brother and the same friend as alternate, then, should both parents die at the same time, the alternate would be the only appointment the parents have in common. As such, the only valid appointment is that of the friend, resulting in the sister and brother being bypassed.
A Will, when drafted properly, will hopefully give effect to your wishes when you are no longer around to voice them on your own. Just as you should think through who you will name as estate trustee and how you wish your assets to be distributed, you should also take the time to think through who you would like to have custody of your minor children.
As this is an area of estates law which intersects with family law, you should consult a family lawyer if you are a guardian under a Will or are the surviving parent of minor children who does not have custody.
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