Although planning your estate can be a daunting task, it is incredibly important. This is especially true for parents of minor children who, in the event of the unthinkable, want to ensure that their children are taken care of. Guardianship planning in your estate is just as crucial as writing a will. To make sure your child’s future is secure, Alberta law requires that clear legal arrangements be put in place to avoid court involvement.
At Verhaeghe Law, our estate planning lawyers understand how and when you can implement guardianship to protect your children when the unexpected happens. Whether you need to create an estate plan or update your existing documents, we can help. To discuss your situation, contact our legal team today.
Why Appointing a Guardian is Essential in Estate Planning
Under Alberta’s Family Law Act, guardianship of minor children doesn’t automatically pass to a family member or relative upon a parent’s passing or incapacity. While many might believe that an immediate relative has the right to step in, this is not guaranteed. The only way for you to ensure the care of your children goes to someone you trust is to appoint a guardian for them in your will/estate plan.
Failure to name a guardian in an estate plan can have serious consequences for any surviving children. If both parents pass away or become incapacitated, Children’s Services in the province will take temporary guardianship until the court appoints somebody. If a single parent is no longer able to care for their children, the court will also decide on guardianship if it has not already been named.
There are many reasons it is essential to appoint a guardian for minor children in your estate plan. In addition to preventing the court from making decisions over your children’s future, you can also make provisions for any special considerations you might have. For example:
- Children with disabilities or extra care needs
- Blended families with shared children, or parents who are divorced/separated
- Preventing family disputes that may arise without an official legal appointment in place
- And more
How to Appoint a Legal Guardian in Alberta
In Alberta, there are multiple ways that you can appoint a guardian for minor children. The primary two are:
- Testamentary Guardianship: Appointing a testamentary guardian will involve writing your appointment into your will or a signed/witnessed document. The appointed individual must accept their responsibilities and will assume them after the passing of a parent.
- Standby Guardianship: You may create a personal directive that specifies certain triggering events and accompanying duties for individuals who are meant to care for your children should you become incapacitated. Standby guardianship is often used in cases of illness or incapacity, although the rules are not clearly legislated in Alberta. Standby guardianship may be useful for single parents who are facing progressive illness and allows for a gradual transition of responsibilities.
There are certain limitations to what guardians can and can’t do, depending on the circumstances of your family. A guardian’s powers and responsibilities over a child will be limited to those that the parent held at the time of their passing or incapacitation. This point is important in cases where parents are separated or divorced and have varying decision-making responsibility arrangements. In addition, in most cases, a guardian cannot override decisions made by a surviving parent.
In Alberta, guardians must:
- Be over 18 years of age
- Consent to their role as guardian
- Act in the best interests of the child(ren)
It may be a good idea to appoint a guardian who shares your values, parenting style, or other important traits. You might have open conversations with potential guardians about your intent, or name alternate guardians in case of the unexpected.
Appoint a Guardian in Your Estate Plan Today
When you are naming a guardian in your will or estate plan, it is crucial that you have an experienced lawyer draft and review all of your documents. They will ensure that the guardianship appointment you make is legally binding and cannot be contested in court after you are gone. They will also help you prevent potential disputes or delays if the unthinkable happens.
For peace of mind about the future of your children, call Verhaeghe Law today. Contact our experienced Edmonton estate planning lawyers to get started with the legal process.