Under the former Family Relations Act, only the last surviving parent with guardianship or custodial rights could appoint a guardian for his or her children. The new Family Law Act allows any guardian of the child, whether or not the guardian is a parent of the child, to appoint a person to be the child’s guardian on his or her death. However, any appointment made by the appointing guardian must be limited to the responsibilities he or she had with respect to the child. As such, a guardian cannot appoint another guardian in his will to have greater parental responsibility over the child than the guardian himself had during his lifetime.
If you have sole guardianship over your children and wish the other biological parent, whether it is the child's mother or father, to have guardianship of the child upon your death, you must specifically appoint the child’s mother or father as the child’s guardian. The other biological parent's appointment in this circumstance is not automatic. Therefore, if you fail to appoint a guardian for the child in such circumstances, a director under the Child, Family and Community Services Act will become the personal guardian of the child, and the Public Guardian and Trustee will become the property guardian of the child. If you die without appointing a guardian for your child, but one or more guardians exist who are also the parent of the child, each of the surviving guardians will have parental responsibilities toward the child, unless a court order or agreement states otherwise.
You can appoint a guardian for your child in your will or by a prescribed form. However, the appointment will not be valid until you die. In the event that you are suffering from a terminal illness or permanent mental incapacity, you may choose to appoint a standby guardian, who will become the guardian of your child once the terms of the agreement are met. It is important to note, that if you do appoint a standby guardian, the standby guardian will take precedence over the appointment of any guardians in your will.
While you can appoint alternate guardians for your children, once a guardian accepts the appointment, you can no longer appoint a replacement. It is then the new guardian's responsibility to appoint a replacement guardian upon his or her death. For example, if you name your sister as the guardian of your child and she accepts the appointment but subsequently passes away, consideration will not be given to who you listed as a guardian, but rather to who your sister appointed as her replacement. If she failed to appoint anyone, than the Director under the Child, Family and Community Services Act will become the guardian of the child. While someone you appointed as an alternative guardian, can apply to court to be named as the child’s new guardian, the appointment is not automatic and can take time. Therefore, when appointing a guardian for your child, it is important that you discuss the issue of a replacement guardian with the individual who you wish to appoint as your child's guardian. You must emphasize the importance of your replacement guardian making a subsequent guardian appointment in his or her will in case he or she also passes away while the children are still minors.
For more information about what to consider when appointing a guardian, as well as the limits of appointment, book of free 20 minute telephone consultation with Laila Ali. The information above may not apply to your situation and should not be taken as legal advice. Consult a lawyer for legal advice.