When parents consider who should be the guardian of their minor-age children in the event they both were to die, they are probably thinking in terms of who will assume parenting responsibilities. In Ontario, however, there is an important distinction between the custodial guardian and the guardian of property, the latter being the person who will make financial decisions for those children until they reach the age of majority. One person can fulfill both roles or parents can break the responsibilities apart and assign guardians for each.
Let’s explore the second form of guardianship first.
In Ontario, subsection 47 (2) of the Children’s Law Reform Act describes a guardian of the property as someone “responsible for the care and management of the property of the child.”
Their duties include making trustee investments and investing the child’s money as required by the management plan approved by the court. If there is a large amount of money involved, the guardian may be required to pass the accounts before the court at fixed intervals, usually from one to five years.
Detailed records, or accounts, must be kept of all transactions carried out on behalf of the children.
Guardians of property may be paid for their work, following the fee scale set out in Ontario Regulation 159/00. It states they are entitled to three per cent on capital and income receipts, three per cent on capital and income disbursements and three–fifths of one per cent on the annual average value of the assets as a care and management fee.
The court can review the accounts and adjust the amount of compensation given, and, if required, demand that some or all of these funds be repaid.
With the financial responsibilities involved in being a guardian of property, it is easy to see why parents should select someone comfortable with handling money for this role.
When selecting a custodial guardian to assume day-to-day parenting duties, most people look to family members. That often works well, especially if the person lives close by and has children of their own. But don’t be afraid to look beyond your circle of relatives. In some circumstances, a family friend might be the better choice. Just as there are no perfect parents, there are no perfect guardians, but your children will have to live with the choice you have made in the event of your untimely death.
There are a number of factors to consider with any guardian choice, such as geography. School-age children may not appreciate being uprooted from friends and schoolmates if the custodial parent lives in another community or province.
The age and health of the custodial guardian are important as well, as you want someone who has the energy to take on the myriad of tasks involved in child-rearing. For that reason, someone who is nearing retirement might not be a wise choice as a custodial guardian.
Parents also have to think about the attitudes and values they are trying to instill in their children. You want to find a custodial guardian who lives by similar standards as yours, to ensure your children are brought up in a manner in which you approve.
Finances should be a factor in your decision-making. Even if a will provides funding for the children’s needs, the custodial guardian’s expenses will go up, so you won’t want to select someone who is already financially strained.
For both guardian roles, you will want to be sure to discuss the issue thoroughly with the people in question before appointing them in your will. It is a statistical long-shot that their services will be required, but make sure they are comfortable taking on those duties if they are ever required to fulfill those roles.
One final point: review your guardianship appointments on a regular basis. Everyone’s personal circumstances change, and the person who agreed to be guardian 10 years ago may be unfit or unwilling to assume that role now.
Stay safe – and have a great day,