Planning for Custody of Minor Children
With the new school year upon us and kids heading back to school, why not take a moment to consider what would happen to your minor child if you and your spouse died?
Section 61(1) of the Children’s Law Reform Act provides that:
61. (1) A person entitled to custody of a child may appoint by will one or more persons to have custody of the child after the death of the appointer.
Section 61 of the Act goes on to include the following limitations:
- The appointer must be the only person entitled to custody of the child;
- If two or more people are entitled to custody of the child, the appointment will only be effective if both people die concurrently and the appointment has been made by both of them;
- The individual appointed must consent to act as guardian; and
- The appointment is only effective for 90 days, or until an Order for permanent custody is made within the 90-day period.
Section 61 also applies equally to guardians of property of a child.
As noted above, a testamentary appointment only lasts for 90 days. Section 47 of the CLRA provides that within the 90 days, the person appointed under the Will must bring a court application seeking permanent custody and must provide The Children’s Lawyer with notice of that application.
While the thought of dying while their children are still minors is something that most people would rather not think about, if who receives custody of your minor children immediately after death is important to you and your spouse, you may want to give it some thought.
Have a nice day!
Megan Connolly
