In the BC Family Law Act, the people who are responsible for caring for, raising, and making decisions about a child are called guardians. Usually both parents are their children's guardians, even if they've separated or they're divorced.
If you die or can't take care of your children (for example, if you have a stroke or are seriously injured) what happens to them depends on what plans you've made for them. You can appoint (name) a guardian to take your place.
Not all parents are guardians. A parent isn't a guardian if:
they've never lived with the children and don't regularly care for them (unless a court order or agreement says something different), or
there's a court order or written agreement that says they aren't a guardian.
See Guardianship: Parenting time and parental responsibilities for more information about guardianship.
What happens if you haven't made any plans?
- you're the only guardian for your children, and
- you die without appointing a guardian for them,
The Public Trustee and Guardian will be responsible for your children's financial and legal rights. The ministry will be responsible for your children's health, education, and upbringing.
The surviving guardian becomes the children's sole (only) guardian if:
- you and one other person are your children's guardians, and
- you die without naming another guardian to take your place.
What if you want to choose a guardian?
If you share guardianship with someone and you want them to be your children's sole guardian, you don't have to do anything. The other person automatically becomes the sole guardian.
If you share guardianship with someone and you don't want them to be your children's sole guardian, you have to appoint another guardian.
If you're the sole guardian, your children's other parent doesn't automatically become their guardian. If you want them to be a guardian, you need to appoint them as a guardian.
Step-parents don't automatically become guardians, even if they're living with your children. If you want a step-parent to become a guardian for your children, you have to appoint them.
Appointing a guardian
There are two kinds of guardians:
- Standby guardian: Someone you name to be your children's guardian if you can't look after them — for example, you have a terminal illness or you have a stroke or car accident that damages your ability to make decisions or think clearly.
- Testamentary guardian: Someone you name to be your children's guardian if you die.
Here are some tips about choosing a guardian for your children:
If you're writing a separation agreement, include what you want to happen with your children if you die.
If you want to be the only guardian if the other parent dies, write that in your separation agreement.
Each parent can appoint a guardian in their own will. That guardian doesn't have to be the other parent.
You can get a court order or agreement if you want to change who your children's guardians are.
How do you record your decision?
If you want to name a guardian to look after your children after you die because:
- you're the only guardian, or
- there's another guardian, but you want to appoint a guardian to replace you,
- make a will, or
- fill out an Appointment of Standby or Testamentary Guardian (Form 2).
Make a will
You can name a guardian (or guardians) for your children in your will.
Always ask a person before you name them as your child's guardian. They have to agree to it. They can agree:
- verbally (they tell you in front of someone else that they'll do it),
- in writing (ask someone to watch them sign and date their agreement), or
- by their behaviour (for example, they take care of your children if you get sick or die).
Fill out an Appointment of Standby or Testamentary Guardian (Form 2)
If you've put the name of your testamentary guardian in your will, you don't have to fill out this form.
If you need to fill out this form to appoint a standby or testamentary guardian:
Sign the form in front of at least two witnesses who are at least 19 years old. They must both be there when you sign it. The person you appoint to be a guardian can't be a witness. The witnesses don't have to be a lawyer or a notary.
Ask the witnesses to sign the form.
In this form, you write who can decide:
that you can't look after your children any more (for example, your doctor), and
when it's time for your standby guardian to take your place.
The person you’ve appointed as standby or testamentary guardian has to agree before they can step in as a guardian.
Can you say how you want the standby guardian to look after your children?
A standby guardian has to look after your children in the way you want as much as possible. If you can't care for your children but you can still communicate, the standby guardian must talk to you as much as possible about what you want and how you want your children to be cared for.
What happens if you die while you have a standby guardian?
If you appoint a standby guardian and then die, the standby guardian will be the child's guardian, no matter what you've written in your will or on Form 2.
If you don't want the same person to be both your standby and testamentary guardian, make that clear in Form 2.
You can change the name of your testamentary guardian in your will or change your choice of a standby guardian whenever you want to.
MyLawBC can help you make a simple will that says what you want to happen after you die, where you can name a guardian for your children. You'll get a downloadable action plan with a will you can fill out and print. If your situation is complicated, you can't make a will with MyLawBC but your action plan will give you information about what you need in your will and where to get help.