Appointing a Testamentary Guardian for Your Child in Alberta
Guardianship refers to a person’s legal authority and responsibility to care for and make important decisions for a child. It is most common for a parent to have guardianship of a child, but other individuals, such as relatives or stepparents, can also be guardians. In Alberta, the Family Law Act allows a guardian of a child to designate a person to take care of their child upon their death. This appointed person is called a Testamentary Guardian. They can be appointed either through the guardian’s Will or a written document that is signed and dated by the guardian and an attesting witness.
What powers does a Testamentary Guardian have?
The Family Law Act defines a guardian’s powers, responsibilities and entitlements, which include many categories, including but not limited to managing the child’s day-to-day, making medical decisions, and providing care and supervision. When a testamentary guardian is appointed, they only inherit the powers, responsibilities and entitlements that the deceased guardian had. A Testamentary Guardian would not inherit additional guardianship powers beyond the scope of the prior guardian.
What happens if no Testamentary Guardian is appointed?
If you pass away without naming a Testamentary Guardian and there is a surviving guardian (for example, a surviving parent) they may assume full guardianship responsibilities subject to any limitations imposed by the Court. If there is no other surviving guardian, someone may need to apply to the Court to be appointed as the child’s guardian.
Can a Testamentary Guardian reject the appointment?
Yes, a Testamentary Guardian must either expressly or impliedly accept the appointment of guardianship for it to take effect. Being a guardian is a big commitment, and a Testamentary Guardian may decline or refuse the appointment. As such, it is important to have a discussion with the person you intend to appoint prior to designating them in your Will.
Factors to consider when choosing a Testamentary Guardian
Determining who is an appropriate person to be your child’s Testamentary Guardian is a big decision and should not be taken lightly. Some factors to consider when choosing a testamentary guardian are as follows:
- Are they emotionally and financially prepared to care for a child?
- Do they have a stable home environment?
- Do they share your values, beliefs and parenting approach?
- Would your child feel safe, loved and supported in their care?
- Are they physically and mentally capable of parenting on a long-term basis?
- Do they have any health concerns that may affect their ability to care for your child?
- Have you spoken with this person to confirm they are willing and able to accept the responsibility of guardianship?
Conclusion
Appointing a testamentary guardian is a significant decision that could have a large impact on your child’s future. Contact our lawyers at Vogel LLP for assistance if you are considering appointing a Testamentary Guardian.