Testamentary Guardianship: How Naming a Guardian Safeguards Your Child’s Future
By Kristin McDonald, Calgary Family Lawyer
While most people consider making a will for estate planning purposes, the equally (arguably more) important purpose of a will is the appointment of a guardian for your children in the case of incapacity or death. Under the Family Law Act, guardianship often includes the rights and responsibilities of caring for and raising a child. These rights and responsibilities generally fall to parents but may also be given to an individual of a parent’s choosing in the case of their incapacity or death. For most parents, just thinking about naming an alternate guardian for their children is unpleasant enough to put off the task indefinitely. Unfortunately, too many parents take comfort in the misconception that where both parents become incapacitated or die, another family member will automatically take over caring for their children. The reality is, although this is often the eventual result, the rights and responsibilities of guardianship do not simply pass to a surviving family member. The process to get to that point is not that simple and can involve expensive legal action, even where there is no conflict as to which family member is taking on the care of the children.
Many parents also don’t realize that where there has been separation or divorce, guardianship does not default to a stepparent or partner, and access to the children by extended family is also not a given.
Appointing a guardian, also known as a testamentary or standby guardian, for your child is critical to ensure their wellbeing. This decision guarantees your child will be cared for by the person(s) you believe are best suited for the job. It also ensures important people in your child's life continue to have access to them. Furthermore, it assists the appointed guardian in assuming their role without resorting to expensive and complicated legal action, especially in the event of your incapacity or death.
What is the difference between a guardian, a parent, and a guardian who is also parent?
A guardian, a parent, and a guardian who is also a parent all have different meanings under the law. The definition of each, as applicable and in the context of appointing a testamentary guardian, is set out in the Family Law Act. Summarily, they are defined as follows:
- A guardian is a person legally responsible for a child's physical, psychological, and emotional development and wellbeing and is required to make important decisions affecting the child.
- A parent is:
a. a child’s birth mother (except where the birth mother is a surrogate);
b. a child’s biological father (except where the biological father is simply a donor in assisted reproduction);
c. a child’s appointed mother and father through adoption; or
d. where a child is born as a result of assisted reproduction, the person(s) who consented to be the parent(s) of a child born by way of assisted reproduction and did not withdraw consent before the child’s conception.
- A guardian who is also a parent is a person who is both a parent and a guardian of a child. Parents assume guardianship by default, except in cases where a parent is absent or unfit.
For the purposes of this blog, the term 'parent' refers to a guardian who is also a parent, while the term 'guardian' simply denotes a guardian.
What is the difference between a testamentary guardian and a standby guardian?
A “testamentary guardian” is a person that a parent has appointed as a guardian in the event of that parent’s death or the death of both parents. It may help to consider a testamentary guardian as a sort of legally recognized “godparent”.
In Alberta, the right to appoint a testamentary guardian is legislated by the Family Law Act. A testamentary guardian is typically appointed in a will and, importantly, only has the powers, responsibilities, and entitlements of guardianship that the parent had at the time of their death. In other words, a parent can only transfer the rights and responsibilities they themselves have and cannot transfer or terminate the rights and responsibilities of a parent that survives them.
The appointment of a “standby guardian” will apply in situations of illness or incapacity rather than death. It may help to think of this designation as being more like setting out a personal directive or “living will” as opposed to a will. This type of appointment may continue upon the parent’s death if it is so stated in the document appointing the guardian.
In Alberta, there is no specific standby guardianship legislation (like there is in British Columbia), and it is not certain whether Albertan’s can effectively appoint standby guardians for their children. However, the Alberta Family Law Act does recognize a parent’s power to appoint a person to act on their behalf in an emergency or where they are temporarily absent due to illness or any other reason. Arguably, this includes appointing a standby guardian. Until Alberta adopts legislation specific to the appointment of a standby guardian, making such an appointment is most useful for single-parent families where there is no automatic replacement (other guardian who is also a parent) for a parent who loses capacity.
Regardless of clear supporting legislation (or lack thereof), the benefits of appointing a standby guardian are significant. Formally appointing a standby guardian can give you peace of mind by allowing you to make plans for your child in the event of a sudden disaster. It is also important should you ever be facing progressive illness as it will enable you to reduce your responsibilities in proportion to your abilities while the standby guardian steps in to fill the gaps. This type of arrangement enables you to maintain guardianship and influence over your child's well-being for as long as possible. Your child also benefits because it eases their transition to care by the standby guardian. It also benefits the standby guardian by formalizing your wishes and the agreed arrangement while also providing official and formal documentation supporting their authority. At the very least, the appointment of a standby guardian ensures that your wishes and intent for the standby guardian to parent in your place in the event of your illness or incapacity are known to interested parties and to the court, should legal proceedings be required.
Who can appoint a guardian for my child?
A guardian who is a parent of a child can appoint a person to be a guardian of the child after their death. This means that you and the child’s other parent can each appoint a guardian. Each parent can appoint a different guardian or guardians. A parent can also revoke the appointment that parent made at any time while they have the capacity to do so.
Importantly, an appointment of a guardian only takes effect if the person(s) accepts the appointment, either expressly or impliedly by their conduct. Where more than one guardian is appointed and accepts the appointment, they become co-guardians.
What rights and responsibilities will the appointed guardian have?
The guardian(s) will only have the powers and responsibilities the appointing parent had at the time of their death. This means that you cannot transfer, terminate, or otherwise change the powers and responsibilities of any other parent of the child. Such powers and responsibilities may include:
- nurturing the child’s physical, psychological, and emotional development and guiding the child towards independent adulthood;
- ensuring the child has the necessaries of life – including medical care, food, clothing, and shelter;
- making day‑to‑day decisions affecting the child - including having day‑to‑day care and control of the child and supervising the child’s daily activities;
- deciding the child’s place of residence or changing the child’s place of residence;
- making decisions about the child’s education - including the nature, extent and place of education, and any participation in extracurricular school activities;
- making decisions regarding the child’s cultural, linguistic, religious and spiritual upbringing and heritage;
- deciding with whom the child is to live with and whom the child is to associate;
- whether the child should work and, if so, the nature and extent of the work, for whom the work is to be done, and related matters;
- consenting to medical, dental, and other health‑related treatment for the child;
- granting or refusing consent where consent of a parent or guardian is required by law in any application, approval, action, proceeding, or other matter;
- receiving and responding to any notice that a parent or guardian is entitled or required by law to receive;
- commencing, defending, compromising or settling any legal proceedings relating to the child and compromising or settling any proceedings taken against the child;
- receiving from third parties any health, education, or other information that may significantly affect the child; or
- exercising any other powers reasonably necessary to carry out the responsibilities of guardianship.
Unless expressly stated otherwise, the guardian’s powers and responsibilities take effect immediately on the death of the parent who appointed them (and their acceptance of the appointment).
Who should I appoint as a guardian for my child?
Unfortunately, only you can answer this question. However, the following things may help guide you:
- A guardian can be an individual, multiple persons, a married couple, family member(s), or friend(s).
- Appointing a guardian in the event of your death, illness, or incapacity can be revoked at any time while you have the capacity to do so. Just like you can change the beneficiaries and executor of your estate by writing a new will, you can also change who you appoint as guardian.
- the appointment of a guardian only takes effect once the appointed person accepts the role. Therefore, it's critical to discuss with potential guardians and confirm their willingness to accept this responsibility before making the appointment.
- Does the potential guardian share your:
a. Values, such as focusing on education or having strong relationships with family members;
b. parenting style/philosophy;
c. understanding of your child’s special needs, if any; and
d. aspirations for your child, such as academic or athletic success.
- Will the potential guardian:
a. facilitate your child’s continued exposure to your beliefs and culture? For example, will they continue to take your child to your place of worship and/or continue to celebrate religious and cultural events that are important to you?
b. Nurture your child’s mental, emotional, spiritual, psychological, and physical growth?
c. Nurture and facilitate your child’s aspirations for themselves. For example, taking your child to sport practices, games, and competitions.
Whomever you choose, a guardian should be carefully selected with the best interests of your child in mind to ensure that, in the unfortunate event that you are unable to continue to care for them, the transition for your child is as easy as possible.
How do I appoint a guardian for my child in Alberta?
Appointing a testamentary guardian in the event of your death
Deciding who to appoint as a guardian is often the most challenging step for parents. Once that decision is made, the technical process of appointing a testamentary guardian is relatively straightforward. All it requires is a valid will or a written document, signed and dated by the parent and a witness. This document must include the names of the guardians to be appointed in the event of your death, accompanied by a witness attestation or an affidavit of execution. Although this process is simple, it is always prudent to have a lawyer review your will or guardian-appointing document to ensure its validity. The lawyers at Crossroads Law are happy to help!
Appointing a standby guardian in the event of your illness or incapacity
Appointing a guardian in this context requires the identification of specific conditions that must be met for the appointment to take effect and for the appointment to terminate. It is important to remember that there are varying degrees and forms of illness or incapacity that can be temporary or permanent. For example, a parent’s illness or incapacity may leave the parent capable of making decisions for the child but limited with respect to the physical care of the child. A typical appointment of a standby guardian will set out the standby guardian’s rights and responsibilities such that, should these circumstances arise, the standby guardian must consult with the parent and to follow the parent’s wishes to the fullest extent possible regarding the care and upbringing of the child. This type of appointment requires the standby guardian to care for the child the way the parent would if they were not ill or incapacitated (so long as that care is not contrary to the child’s best interests).
The appointment of a standby guardian is comprehensive and enduring. However, it is important to note that, in Alberta, only the appointment of a testamentary guardian is clearly and specifically legislated. This means that the appointment of a testamentary guardian is legally enforceable, so long as the document appointing the guardian meets certain criteria. The appointment of a standby guardian is less clear cut; however, the Family Law Act does recognize a parent’s power to appoint a person to act on their behalf in an emergency or where they are temporarily absent due to illness or any other reason. Arguably, this includes appointing a standby guardian. It is highly recommended to have the support of a knowledgeable lawyer help you craft an appointment of a standby guardian to ensure it is appropriately comprehensive and meets all the legal standards to ensure it will be found to be valid in the event it is challenged. The knowledgeable and effective lawyers at Crossroads Law are happy to help with this too!
What happens to my child in the event of my death, and I have not named a testamentary guardian?
Where there is a surviving parent
In the event of one parent’s death where there are two parents and no testamentary guardian is named, the surviving parent becomes the sole guardian of the child. This means the other parent (whether the parents are still in a relationship or have separated or divorced) has all the rights and responsibilities of guardianship and the “care and control” of the child, including who has access to the child such as grandparents and other family members and friends. It is important to note that extended family members have no inherent right to communicate with, see, or have a relationship with a child. This is important to keep in mind, especially where there is tension or conflict between the other parent and family/friends that you wish to continue to be a part of the child’s life as this will be within the other parent’s sole discretion to allow or restrict.
Where there is no surviving parent
In Alberta, where the deceased parent was the sole parent who is also a guardian, or where both parents who are also guardians are deceased and no alternate guardian is named by the parent, guardianship will temporarily fall to Children’s Services until such time as an appropriate permanent guardian can be found. This requires a potential guardian to apply to become a guardian of the child and undergo review and approval by Children’s Services and the granting of guardianship by the court. This process in and of itself can be onerous and emotional for the child and family/friends, adding the death of the child’s sole guardian increases the sensitivity and emotional drain on all those involved, especially in cases where there are multiple potential guardians seeking to appointed.
Ultimately, to ensure that your child is placed in the care of a trusted family member or friend in the event of your death, parents must ensure that they have legally designated a guardian (also called a “testamentary guardian”). A designation may be made in a will or another written document that meets the criteria set out in the Family Law Act.
What happens to my child in the event of my incapacity or illness and I have not appointed a standby guardian?
Where there is another parent
In the event of one parent’s illness or incapacity, where there are two parents and no standby guardian is named, the other parent becomes the sole guardian of the child - temporarily or permanently depending on the circumstances. This means the other parent (whether the parents are together or have separated or divorced) has all the rights and responsibilities of guardianship and the “care and control” of the child, including who has access to the child such as grandparents and other family members and friends. It is important to note that extended family members have no inherent right to communicate with, see, or have a relationship with a child. This is important to keep in mind, especially where there is tension or conflict between the other parent and family/friends that you wish to continue to be a part of the child’s life as this will be within the other parent’s sole discretion to allow or restrict.
Where there is only one parent
In Alberta, where the ill or incapacitated parent was the sole parent, guardianship will temporarily fall to Children’s Services until an appropriate permanent guardian can be found. This process necessitates a potential guardian to submit an application for child guardianship. This application is then subject to review and approval by Children's Services, followed by the official granting of guardianship by the court. This process in and of itself can be onerous and emotional for the child and family/friends, coupled with weight of the illness or incapacity of the child’s only parent. The emotional drain on all those involved, especially in cases where there are multiple potential guardians seeking to be appointed, is immense.
Ultimately, to ensure that your child is placed in the care of a trusted family member or friend in the event of your illness or incapacity, parents must ensure that they have legally designated a guardian (also called a “standby guardian”). A designation of this nature must be comprehensive and stipulate whether it will endure in the event of your death.
How does separation and divorce affect the appointing of a guardian for my child?
The short answer is that separation and divorce only affect the powers and responsibilities that the appointed guardian will assume upon a parent’s death, illness, or incapacity - not the parent’s ability to appoint a guardian.
If a parent subject to a parenting order (typically found in cases of separation or divorce) passes away without appointing a guardian, the rights, responsibilities, and entitlements of guardianship allocated to the deceased parent under that order default to the surviving parent - except in cases where the surviving parent has been found to be unfit to assume those powers and responsibilities.
If a parent subject to a parenting order (typically found in cases of separation or divorce) passes away and has appointed a guardian, the appointed guardian may only exercise the powers, responsibilities, and entitlements of guardianship that were allocated to the deceased parent under that order. This means that you can only appoint a guardian to step in for you, not any other parent. For example, where a parent has joint guardianship of a child and the parent dies, the appointed guardian then becomes a joint guardian with the surviving parent. Where the deceased parent only had parenting time and responsibility for a child every second weekend, the guardian the only has responsibility for a child every second weekend, subject to a subsequent parenting order.
Most parents do not like to consider the possibility that they will be unable to care for their child at some point in their lives. However, the thought of your child being left in the care of the wrong person, someone who does not share the same values, beliefs and culture, is unbearable. All parents, especially those facing progressive illness, should talk to their lawyer about guardianship arrangements for their children in the event of death or incapacity. The lawyers at Crossroads Law understand how difficult this decision can be and can help you through the temporary unpleasantness with empathy and professionalism to help you ensure the care of your children in the future and your peace of mind today.