As parents, none of us like to think about what would happen if we became seriously ill or passed away. But during this COVID-19 crisis, these thoughts may be on the your mind more than you’d like to admit. One of the ways to lessen your anxiety is to ensure that “things are in order” in a legal sense. We would encourage you to update your will and other legal representation documents. Although we here at Connect Family Law do not create such documents, there is one type of document that we can provide during this critical time: a testamentary and/or standby guardianship appointment. Even if you have not yet created a will, you can ensure that the guardianship of your children is in place.
What is Guardianship
Guardianship determines who makes decisions for and about children who are under the age of 19. Under BC’s Family Law Act, only guardians have parenting responsibilities for children which include making decisions as to where the children will live, whether or not they will be brought up religiously, what schools they will attend, and whether to consent or refuse medical treatments (see s. 41 of the Family Law Act for a full list). Only guardians have parenting time with children, although non-guardians can apply to have contact time.
Appointing a Replacement Guardian
There are two ways a parent can appoint a replacement guardian under the Family Law Act.
Section 53 allows you to appoint a guardian or guardians in the case of your death (a testamentary guardian).
Section 55 of the Family Law Act allows you to appoint a guardian if you are facing terminal illness or permanent mental incapacity when certain conditions are met, such as being medically incapacitated (called a stand-by guardian). This allows you to, in effect, assign your guardianship to someone else while you recover. You can include in the form that a designated person, such as a doctor, must certify that you are incapable before the appointment comes into effect.
The person you name as either testamentary or stand-by guardian needs to accept the appointment, either expressly or as implied by their conduct, for it to be in effect.
Be sure that whoever you appoint as guardian is someone who can cooperate with any other guardians of the child, such as the other birth parent. Keep in mind that some separation agreements stipulate that you will not appoint such a guardian without the consent of the other parent, so discussion with the other current guardian of your child or children may be required prior to this action. In your circumstances, it may make the most sense to agree together on someone who will be appointed as guardian only upon the death of both parents, rather than one, if you are satisfied that your child’s other parent can carry out parenting responsibilities on their own upon your death. Ultimately what and who you choose needs to be in the best interests of your child.
If your child is older
If your child is over the age of 12, it is recommended that you discuss this appointment with the child, since it is important to include the views of older children in any decisions being made about them. If, for example, someone was applying in the courts to become a guardian of a child over the age of 12, the judge would look for the consent of the child before appointing them.
How Connect Family Law can help make this happen during COVID-19
We at Connect Family Law are fully operational and can meet with you by video conference, email or phone, to discuss the implications of appointing a guardian and to create the necessary documents. We can also advise you on how to get your documents signed and witnessed in this time of self-isolation and social distancing.
We are all looking for ways to lessen the stress and anxiety present in our homes and communities at this time. This is a small, but important, step we can help with here at Connect Family Law.
If you have questions, or would like more information, please contact us.
NOT LEGAL ADVICE. Information made available on the Connect Family Law website in any form is for information purposes only. It is not, and should not be taken as, legal advice. You should not rely on, or take or fail to take any action, based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. One of our lawyers would be pleased to discuss any specific legal concerns you may have.
