Individuals with minor children have particularly high stakes to consider when it comes to preparing wills and end-of-life documents. Primarily, they need to consider a plan for the care and custody of the children. They may also consider if or how to provide funding to the children’s caretaker. Ontario planners and the executors supporting them should be aware of the legal, financial, and estate administration tools available to manage these issues.
Choosing a guardian is a personal and sometimes challenging issue for parents to consider. While parents never plan to leave their children in need of a guardian, tragedies can happen and it helps to be prepared. It’s important to note that the person responsible for a child’s property is a different designation than the person selected for custody. Legal guardians appointed by the court will temporarily have both responsibilities; however, they are typically separate.
Ontario courts do consider parents’ wills when awarding custody; however, judges can override decisions based on the best interests of the child. In some cases, the child will be asked what he or she would prefer if old enough to articulate this. Assuming the court agrees to the decision in the wills, the guardian may be funded in accordance with the parents’ estate plans. This is not a requirement, but is something most parents choose to allocate in their planning.
While the courts have final say on guardianship for children should their custodial parents pass away, there are some things parents can do to improve the chances of children ending up with their desired guardians. Speaking with the intended guardian and engaging an Ontario lawyer to understand processes and pitfalls are both good ideas. Executors and named guardians involved in the estate administration should also engage a lawyer as soon as possible in order to navigate the family and estate law systems involved.