Sunday, November 27, 2011

New Family Law Act and Standby Guardians

The new Family Law Act, Bill 16, has now been passed by the British Columbia Legislature, and has received Royal Assent, but as of the date of this post is not yet in effect.

If you are the guardian of a minor child, there is a provision that will, when it comes into force, allow you to appoint a standby guardian of the child in case because of illness or mental incapacity you become incapable of acting as the child’s guardian.

Section 55 provides as follows:

55 (1) A guardian facing terminal illness or permanent mental incapacity may appoint a person to become, when the conditions set out in the appointment are met, a child's guardian, in addition to the appointing guardian.

(2) An appointment under subsection (1)
(a) must be made in the prescribed form,
(i) signed at its end by the guardian, or the signature at the end must be acknowledged by the guardian as his or hers, in the presence of 2 or more witnesses present at the same time, and
(ii) signed by 2 or more of the witnesses in the presence of the guardian,
(b) must state the conditions that must be met for the appointment to take effect, and
(c) may provide that a designated person certify that a condition referred to in paragraph (b) has been met and that, if such a certification is made, it is conclusive.
(3) For the purposes of subsection (2) (a),
(a) a witness may not be a person appointed to be the child's guardian, and
(b) a reference to the signature of a guardian includes a signature made by another person in the guardian's presence and by the guardian's direction, and the signature may be either the guardian's name or the name of the person signing.
(4) In carrying out his or her parental responsibilities, a guardian appointed under this section must consult with the appointing guardian to the fullest possible extent regarding the care and upbringing of the child.
(5) Unless the appointing guardian, while capable, has revoked the appointment or the appointment provides otherwise, a guardian appointed under this section continues as the child's guardian on the death of the appointing guardian despite any other instrument made by the appointing guardian.

I am concerned about how the first part of this section is worded. Do the words “A guardian facing terminal illness or permanent mental incapacity,” mean you can only make the appointment if you have been diagnosed with an illness or for some other reason anticipate that you will become terminally ill or suffer permanent mental incapacity? I doubt that this is what the Legislature intended. You should be able to appoint a standby guardian incase you become incapacitated without there being an immediate prospect of such incapacity. You may be perfectly healthy, but want to name a standby guardian for your child incase you are incapacitated in a car accident.

This section should be amended by deleting the words “facing terminal illness or permanent mental incapacity.” They either limit the application of the section in an irrational way, or, as is more likely, they don’t add anything to the meaning of the section.

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