Choice of guardian paramount in young parents' will

Mark and Susan have young children. When it came time to do their wills, their lawyer asked, "Who should take over in the role of parents if the two of you die while the kids are underage?" For young families, that is often the most difficult decision during the will-making process.

If you have young children, it is important you address that when you are making a will. How do you pick the right person for the job?

First and foremost, you are looking for the person who will be the best substitute parent. You need to appoint someone who will give them a loving home, teach them the right values and give them a strong moral example to follow. Kids do what they see, not what they are told. Do not worry about whether the person you are considering as testamentary guardian has money. That is secondary. Your will can and should hold the children's inheritances in trust and make it available along the way to pay for food, bicycles, books, tuition and the other amounts involved in their upbringing.

After you have picked the best possible substitute parent, everything else is secondary. Family is better than non-family, but that is not a trump factor if the best person is someone outside the family.

Geography is important, but not critical. It is useful if the testamentary guardian lives in the same city. There will be less disruption for the children if they are able to keep the same school and same friends.

Age is important, but not critical. Some people pick their parents for the job, and the parents' health may not be assured if they are on in years. That is still fine, provided another younger person is designated as the alternate to take over if the parent cannot accept the job.

It is best to pick a person, not a couple. Couples break up. If you are considering a couple, ask yourself which one should take the children if the couple has separated.

Ask the person you pick, before you sign the will, whether they are willing.

Pick the guardian first. It is the most important job. Then pick a person to serve as trustee over the money. It is usually best, where possible, to keep the two roles separate. Put one person in charge of parenting and another over purse strings.

Strictly speaking, the appointment you write into your will is not binding. It is highly influential, however. Generally, no one in the family will interfere with your choice of testamentary guardian when the time comes and that guardian steps forward to shoulder the commitment. At the same time, the best interests of the children will always trump the wishes of the parent. The brother you picked and wrote into the will as testamentary guardian might divorce, quit his job as a teacher and take up a transient career as a rodeo clown before you die. The courts will intervene, if need be, to make sure the children are not living out of the back of a pickup truck and chewing tobacco before breakfast.

Mark and Susan ultimately put a clause in their will appointing Mark's sister as testamentary guardian for the children. They are confident she will give the children a loving home. She said yes when they asked her if she was willing. The wills include a provision that gives the sister $100,000 as a cash gift if the worst occurs and she is forced to take the children. The sister would likely use that money to buy a family van and build another pair of bedrooms in her house. The will also directs that all of the children's direct and indirect expenses be paid for out of the trust. The sister will never need to take her wallet out to pay expenses for the children she has agreed to take into her home.

This story is real one. The names involved and some of the details have been changed to preserve the confidentiality of the couple involved.

John E.S. Poyser is a lawyer with Tradition Law LLP. Contact him at 204-947-6802 or jpoyser@traditionlaw.ca, or visit www.traditionlaw.ca.

Republished from the Winnipeg Free Press print edition February 20, 2013 B6