Generally, an individual will prepare a will to ensure that their family is taken care of after their passing. However, not everyone might understand that there are special considerations for the testator’s children when they are still minors at the time of the testator’s death. Therefore, accounting for these nuances in the law is an important step in planning for the distribution of a testator’s assets and guardianship of their children. Responsible planning safeguards the testator’s children’s well-being and honors their wishes and legacy. This blog will outline important considerations for making testamentary appointments for decision-making responsibility of a child and guardianship of their property.
Passed in 1990, the Children’s Law Reform Act is a legal framework that focuses on protecting the well-being of children in Ontario regarding family law matters. It covers custody and access arrangements, guardianship rights, child support guidelines, enforcement of court orders, child protection services, adoption procedures, parentage determination, and name changes. It provides essential legal guidelines to ensure children’s welfare and security in various family-related situations and important rules related to estate planning for children.
The provisions of the Children’s Law Reform Act stipulate that the parents of a child are equally entitled to decision-making responsibility. This responsibility can be lost through a court order, but if it is not, the parent has the right to bestow the statutory right to decision-making responsibility to another individual.
Where the testator chooses to do so, the Children’s Law Reform Act prescribes specific rules that must be followed. According to section 61(4), the testamentary appointment for decision-making responsibility is only effective where:
- The testator is the sole individual having decision-making responsibility concerning the child on the day immediately prior to the day the appointment is to take effect, or
- The testator has decision-making responsibility with another person, and they both die simultaneously or in circumstances that render it uncertain who survived the other.
In the first scenario, the testamentary appointment would be ineffective if the child has a sole living parent. This would also be true if a parent had lost their decision-making responsibility through an order of the court and attempted to appoint a decision-maker.
The second scenario is relevant only where one person having decision-making responsibility has made a testamentary appointment. However, section 61(5) further adds that in this scenario, only common appointments will be effective, i.e., both parents (or individuals with decision-making responsibility) appoint the same individual(s). Otherwise, no appointments will be effective in a common disaster.
One of the key principles codified in the Children’s Law Reform Act is that the best interests of the child prevail, extending to any testamentary appointment and decision-making authority is a temporary right and can be forfeited if required. This is evidenced by section 61(7) of the Children’s Law Reform Act, which states that a testamentary appointment expires after 90 days from the date the appointment becomes effective. Even so, the appointed individual does have recourse to extend the appointment. The same section allows that individual to apply to the court for a “more permanent” appointment, where the court will exercise its discretion, considering the child’s best interests.
Neither the parent nor the person appointed with decision-making responsibility has an inherent right to possess or control property or assets belonging to the child. In order to do so, an application must be submitted to the court to be appointed as a “guardian” of the child’s property.
Applications for guardianship are governed by section 47 of the Children’s Law Reform Act, where any person, including a parent, can apply. Again, the child’s best interests would be considered, and the Children’s Lawyer could oppose such an application. If the guardianship is granted, the child’s property may be paid to the guardian.
The guardian will also be entitled to make a testamentary appointment with respect to the guardianship. In other words, the right can be passed on to another individual, similar to the right to decision-making responsibility. The same restrictions apply to decision-making authority as stated above. Furthermore, guardianship is also temporary, subject to the same 90-day period, and the same rules regarding requesting a more permanent appointment.
However, section 61(8) of the Children’s Law Reform Act provides that any person can apply to become a guardian of the child’s property at any time.
The skilled will and estate lawyers Bader Law have extensive experience providing insight and legal guidance on the estate planning process, including for making testamentary appointments. Our team works closely with clients throughout Mississauga and the Greater Toronto Area to help them develop tailored strategies for both simple and complex estate planning and probate matters. We advise clients on best practices in both simple and complex estate matters to ensure they have a plan in place to protect their interests and minimize their estate tax obligations. To schedule a confidential consultation with a one of our lawyers, contact us online or at (289) 652-9092.