BC’s new Family Law Act (the “Act”), in force since March 2013, permits a parent or other legal guardian of a child to appoint a standby guardian using prescribed Form 2, in anticipation of the parent or guardian’s permanent mental incapacity or terminal illness. The standby guardian must consult with the appointing guardian to the fullest extent possible. The new legislation aims at a smooth transition to the standby guardian and permits the appointing guardian to retain guardianship powers as long as possible. The new legislation fills a gap that arose in child care, because a will that appoints a guardian is only effective upon death of the appointing guardian. The standby guardian must accept his or her appointment expressly or impliedly by conduct.
The new Act continues the prior practice of permitting a guardian to appoint a child’s replacement guardian in a valid will. Alternatively, Form 2 described above, also permits the appointment of a child’s guardian on the death of the appointing guardian. Note that Form 2 can be used for both appointments, offering the dual benefits of allowing multiple appointments in the same form, while also allowing the individual to appoint a testamentary guardian without being forced to reveal the terms of the Will to such testamentary guardian.
Parents and other guardians of children should consider making a standby guardian appointment, in addition to their will, enduring power of attorney, representation agreement, and other estate and incapacity planning documents.
If you have any questions about standby or testamentary guardianship appointments or their effect on estate and incapacity planning, please contact one of our Wealth Preservation + Estate Litigation professionals.
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