Wednesday, December 07, 2005

Appointing a Guardian by Will in British Columbia

In British Columbia, a parent may appoint some one in his or her will to act as guardian of the parent’s minor children on the parent’s death. The applicable legislation, section 50 of the Infants Act, RSBC 1996, c. 223, does not authorize anyone other than the child’s parent to appoint a guardian by will. This means that if, for example, a child’s parents are dead, then the child’s sole guardian cannot appoint a subsequent guardian by will in case the first guardian dies.

Where two people, usually the parents, are joint guardians of a child, and one of the joint guardians dies, then the surviving joint guardian becomes the child’s sole guardian

The British Columbia Law Institute, in its March 2004 “Report on Appointing a Guardian and Standby Guardianship," has recommended the following changes to the law:
1. That the testamentary guardianship provisions currently located in the Infants Act be relocated to the Family Relations Act.
2. That a guardian who is not a parent should be able to appoint a person to act as guardian of the child after the appointing guardian’s death.
3. That the Family Relations Act be amended to allow for the appointment of a standby guardian.
4. That the simple form set out in “Form X” be enacted through regulation under the Family Relations Act.

If the recommendations are implemented, a parent or other guardian of a minor could appoint a standby guardian who would become a guardian on certain triggering events such as the physical debilitation, mental incapacity or death of the minor’s sole guardian. Currently, British Columbia legislation does not provide for the appointment of a standby guardian.

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