Who Will Be the Guardian of Your Children?

There is a lot to organize when you have a new baby; the sleeping patterns, the feeding, the crying and the soothing. However, amidst all of this, there is paperwork to complete and file. Usually, new parents are given help with the basics such as registering the birth, and applying for a Social Insurance Number or health card. But one of the most important documents that needs to be written and is often overlooked is a new Last Will and Testament for the parents. Most people think of a Last Will and Testament as a document for describing the distribution of their possessions after they have passed away, and this is indeed one of the most important elements of this very important piece of paper. But for new parents, often the most challenging clause is the one that names the guardian of their children.

What happens if you do not have a Will?

If something were to happen to you as a parent, the other parent will in almost all cases be given the parental responsibilities for your child or children. But if something were to happen to the two of you, then things can become very complicated. It is not likely to happen, but it just might.  Imagine for a moment that your child is with a caregiver and you and your spouse are running some errands. There is always a possibility that something could happen to you at that moment and, although the thought is horrific, it is best to prepare and give some thought to who would be the best person to take over guardianship of your child.
Without a Will, friends and family members will apply to the family courts and a judge ultimately decides who will be the most appropriate guardian for your children. They will not personally know any of the applicants and will only be able to consider things like age, financial means, type of relationship, or geographic location. They will not be able to consider less tangible aspects such as values, personality, and general priorities in life. The battle in the family courts can be an ugly one, but ultimately, you will have absolutely no say in the matter if you do not have a valid Last Will and Testament.

What happens if you have a Will?

If you have a Will there will be a clause naming your choice for the guardian of your children and in some cases you can describe why you have chosen this person. Your choice may be a difficult one. Do you want your child to have to move to a different geographic location, to a different town or different country? Do you want your child to live with family members, or with the best qualified friend? What makes one person more qualified than another; their financial means or their values? What about a prospective guardian’s religious or spiritual beliefs? Is it more appropriate to ask somebody who already has children or somebody without children?
It can be a very difficult decision, especially as the role of guardian is likely to last until the child becomes an adult; 18 or 19 years old depending on where you live.
But if you have included your preference in your Will, then this can be submitted to the family courts and will be a crucial piece of information for the judge to ponder when the guardianship is granted. Of course, remember that you should also discuss guardianship with the individual or family that you have named before finalizing your Will. It should not come as a shock to them and you must know that they are willing to take on the role. Just by including your preference in your Will, they are not legally bound to accept the responsibility.

But isn’t it a pain to write my Will?

It can be, but it does not have to be. Basically, you have three options:
You can see a lawyer, who will be able to give you professional legal advice. This will cost anything from about $200 to well over $1,000, but it does mean booking an appointment and heading to a lawyer’s office. You are likely to receive top quality service, but it can be inconvenient and expensive to update and maintain your Will if you change your mind about something. If you have a young baby, it may be a lot to ask to organize and make a trip to a law office.
At the other end of the spectrum are the blank Will kit forms that you can buy in stationery stores. These are the cheapest, but have been largely criticized by many observers as they are simply a blank form and you are supposed to figure out how to complete the Will yourself. Although you are legally allowed to do this, writing your own Will is generally a bad idea. You may have Minor Trusts to set up, alternate plans, residual beneficiaries, and other items that are obvious to a legal professional but not to a layperson. The biggest issue is that you will never know that you have made a mistake; it will have to be dealt with by your survivors. A mistake in the signing procedure, for example, can invalidate every aspect of the Will, and you will be none the wiser.

A middle ground worth considering is an online tool, somewhat analogous to tax preparation software. Such tools guide you through the process of creating your Will by asking you a series of questions about your family situation and your wishes for distributing your assets. They will also check that you have included things like guardians for your children. The added advantage of these systems is that you can complete your Will at home, at your convenience, and then update your document at any time in the future when your circumstances change. Each time a change is made, you simply print off the new version and sign it in the presence of two witnesses to create your new legal Last Will and Testament customized for your location and personalized to your situation. At a fraction of the cost of hiring a lawyer, you can have your Will in your hands in 30 minutes or less and this will include the critical step of naming a guardian for your children.

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