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How to Choose a Guardian

Choosing a trustworthy sitter for date night can be hard. Leaving your children with friends or family for a childless holiday can be challenging, too. Imagining your untimely passing, leaving your children orphans, and deciding who is best suited and willing to raise your children can be nearly impossible. Sadly, in the event of your untimely death or incapacity without a Will, Enduring Power of Attorney, or Personal Directive, and decisions made with respect to your medical treatment, finances, or the care of
your children will be made by the courts without your guidance.

When preparing estate documents, many clients overestimate the amount of time required to gather and document their assets, while underestimating the challenge of selecting agents to act on their behalf upon their passing. As assets and liabilities continually change, the primary purpose of writing a Will is not to document your property. Rather, the primary purpose for writing your Will is for legal tasks, such as naming your Executor, beneficiaries for property, and appointing Guardians for your children.

To ensure your estate is managed and distributed in accordance with your wishes, it is vital to name both an Executor and Guardian of your children within your Will. 

Naming an Executor

Your choice of an Executor, also known as a Personal Representative, is very important. Your Executor will manage your affairs upon your passing and will have significant discretion on decisions relating to the administration and distribution of your estate. You want to choose someone whose judgment and decision-making ability you trust and is most closely aligned to yours. Unless otherwise specified, your Executor will be the Trustee of any trusts established under your Will. You should consider the Executor’s ability to serve in that role in the context of the duration of the trusts, which can span many years.

Considerations:

  • Our strong recommendation is that all Executors be residents of Canada. 

  • Should you choose an Executor who resides outside the province of Alberta, there are some disadvantages and potential costs to the estate.

  • Do you wish for the Trustee to be the same as or different from the Executor?

  • Ensure you select an Executor who is able to dedicate the time required to administer your estate. A typical estate may take anywhere from nine months to two years to administer.

  • You may find yourself wishing to appoint more than one person to act jointly as Executor. Joint Executors may not make decisions on their own accord. Rather, they must work as a team to carry out the terms of your Will. Keep in mind conflicts can arise quickly between Joint Executors, delaying the administration of your estate. 

  • Name both primary and alternate Executors should your primary Executor be unable or unwilling to act. 

  • Talk to any Executors under consideration to ensure they are willing and able to act.

Appointing a Guardian

One of the most crucial decisions you will make is the designation of a Guardian for your child(ren). A legal Guardian is an adult designated to care for a child in case both parents die before that child reaches adulthood. Many people struggle to pick a Guardian, and express that it is the biggest reason for delaying the completion of their Will.

Deciding who will raise your child in your absence is one of the toughest decisions you’ll face. You want to choose someone whose parenting style, values, and religious beliefs most closely match your own. You will also want to consider who is most able to take on the responsibility of caring for the child - emotionally, financially, physically, etc.

Considerations:

  • Consider naming a Guardian that is different from your Executor. This will allow for a greater level of accountability with estate proceeds. If your Guardian is also the Executor and Trustee, they will have absolute discretion to draw from the trust(s) without consulting anyone.

  • If you select a relative and their spouse as Guardians, consider naming only the relative as the Guardian. This will prevent any issues in the event of a change of relationship status at the time of your death.

  • A younger Guardian will be best suited to support your children into and through adulthood. However, they may be juggling work and a family of their own. An older Guardian may be in a better position financially and have more time to be hands-on with raising your children, but they may be out of touch with ‘today's’ children.

  • It is important to get approval from the person you are considering appointing Guardian before you make it final because there may be valid reasons why someone cannot fulfill your request.

Choose an alternate Guardian to include in your Will; they will care for your child if your primary choice can’t or won’t serve.

Once you’ve chosen a Guardian, revisit your choice every few years to ensure they are still the best person for the role.

Sean is the founder of SUMMIT LEGAL GROUP, summitlegalgroup.ca, a Calgary law firm that specializes in Real Estate, Wills, and Estate law. If you have questions about estate planning, contact 587-356-0356 or email This email address is being protected from spambots. You need JavaScript enabled to view it.. This information is for discussion purposes only and does not constitute or replace legal advice. 

 

 

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