Guardianship of a Minor

You can name someone as guardian in your will or a separate guardianship document. A separate guardianship document can be more useful because it is focused. You sign it and have someone witness your signature just as you would in a will. The guardian can use it if you are alive but can’t communicate and cannot care for your child.

If you name someone as trustee, you should do that in the document that deals with the asset. For example, if you are leaving money to your minor children in your will, your will should say who you are naming as trustee to manage that money. 

Your first choice for guardian might die or might not be able or willing to take on the job. This is why it is important to always name at least one backup guardian too, if you can.  Your backup guardian is called an “alternate.”

Talk with the guardian or guardians you choose to make sure they are willing and able to take on the job. Do that before you name them in a child guardian appointment document.

You will need two people to watch you sign your guardianship document and to sign it themselves. Those people:

• must be adults (over 19 years old)
• must not be named as guardian or trustee in the document

Neither they nor their spouses can gain any money from the arrangement. For example, if you appoint the guardian in your will, the witnesses cannot be people who receive something from the will (these people are called “beneficiaries”).

See a lawyer to make your child guardianship document. Or, use the free, basic Child Guardian Appointment form on the Legal Information Society’s website to name a guardian for your minor child or children.

No. The guardian does not automatically have the status of trustee. If you are leaving money or property to your minor children in your will, you should name a trustee in your will.  

You can name a trustee to look after your child’s share of your estate by naming them in your will and saying that they will hold the child’s share of your estate in trust. The trustee will manage the funds or property in trust until your child is an adult (19 years old or older). 

A guardian must be 19 years old or older and be mentally competent. They must be able to make decisions and understand the consequences of their actions. Ensure your child’s guardian is willing and able to take responsibility for your child. 

If you are in a shared parenting arrangement, you must name the other parent as the guardian unless they consent in writing to you naming someone else. If the other parent won’t consent to your choice of guardian, consult with a lawyer. 

The trustee gives your child’s guardian money from your estate to help cover the costs of raising your child. You can write instructions for the trustee in your will or guardianship document.

You can name the same person as guardian and trustee. Talk with a lawyer if you are unsure whether the person you want can handle both tasks.

No. The trustee only manages the money and property you entrust to them. You cannot give the trustee general powers over all the money and property that the child might acquire. 

If someone gives your children money or property in a document that does not also name a trustee, the court will need to name a trustee for that money or property. 

For example, if a relative leaves money directly to your children without naming a trustee in their will or in a life insurance policy, someone will need to apply to court to be appointed as the trustee for that money. If no one applies to court, the Public Trustee acts as trustee for the money.  

No. If an adult is unable to make important health, personal care or financial decisions on their own, a family member or other caring person may need to apply to court to ask to become the adult’s representative to make some or all of those decisions for them.  

A representative may make only the decisions the adult is not able to make on their own. Go here for information about representative decision-making for an adult.

It is best to talk with an estate planning lawyer to plan for the future care and financial support of an adult child who needs decision-making support.

After you die, a person who disagrees with your choice of guardian or trustee can apply to Family Court to contest your decision. What happens next depends on:

• whether the person contesting your choice is the other parent (or someone who was in a parenting role)
• what arrangement a judge thinks would be in the best interests of the child. 

If the person contesting your choice is the child’s other parent, the court will assume that they should be the guardian. The person named in the guardianship document will be able to challenge this in court. The court may appoint your guardian over the other parent if a judge thinks that is in the best interests of the child. 

In all other cases, the court considers applicants equally and bases its decision on what is best for the child. The court will consider your wishes. However, they may overrule your choice if the person contesting presents a strong case.

The judge may consider:

• how well the child knows the person
• whether they have a family relationship, for example, are blood relatives
• how much the child’s life would be disrupted (having to move)
• if there are siblings and whether they can stay together.

The court can also consider the children’s wishes, especially the more mature ones.   

If you die or become unable to care for your children, the other parent usually takes care of the children if they are under 19 years old. 

Even so, parents should name each other as guardians in their wills, in a guardianship document, or separation agreement. This tells the court what you want in case someone else applies to be the guardian after your death.

The same is true if you are a single parent with primary decision-making responsibility. Usually, the child’s other parent will become the guardian if something happens to you. However, naming the other parent in writing makes it clearer for everyone.

If you share parenting responsibilities, you must name the other parent as the guardian unless they consent to someone else being named. They must consent in writing. 

If you name a different person as guardian without the consent of the other parent, the other parent can go to court. The court will name the other parent as guardian unless the judge decides they are unsuitable. With that in mind, if you are planning to name a different person as guardian (someone other than the parent), you should get a lawyer to help you write out your wishes, concerns and reasons for choosing another person. Your statement will be important if people disagree about guardianship after your death. 

Dying without naming a guardian will complicate things for your children and the other people who care for them. 

If the children end up living with another family member or friend, that person may have difficulty getting benefits or dealing with others like school administrators or health care professionals so they may have to seek a court order confirming them as the guardian. 

Concerned family members or friends may argue over who should be the child’s guardian. If that happens, the court will choose a guardian from among the people who ask for the role. The decision is based on the child’s best interests. 

If there is money in your estate for the children and you have not a named a trustee for that money, the Public Trustee becomes the automatic trustee of the children’s property. Anyone else will have to get a court order confirming them as the guardian of your child’s money and property. 

If there is no one to take on the role of guardian, the children will end up in the care of Child Protection Services.  

Children can receive a little bit of money or property through their guardian without a trustee involved. Specifically, children can receive a total of up to $10,000, but they can only receive a maximum of $2,000 in a single year. 

A responsible person will need to apply to the Supreme Court to be appointed as trustee for the child if the child receives a gift that:

• does not include a named trustee
• is greater than $10,000 in value or
• needs to be paid out in a lump sum that is greater than $2,000 in a single year 

If the court appoints the trustee, the trustee usually must be bonded. This means they must give a personal bond or arrange a surety bond through an insurance agent. The court can decide that it does not need a bond. Bonding can be a complicated process. The trustee has to pay a fee but can charge the fee to the estate.

Bonding the trustee protects the child in case the trustee acts in a way that is not in the child’s best financial interests.

The Public Trustee is automatically the trustee of a child’s property and finances. If no one applies to be named trustee of the child’s finances under the Guardianship Act, the Public Trustee of Nova Scotia will remain the guardian of the finances or estate. The Public Trustee can receive, manage and hold funds in trust until the child is 19 years old.

The guardian must provide financial support for your child. They may be able to get some government benefits to help:

• The guardian can apply for the Canada Child Benefit. 
• The Canada Pension Plan (CPP) provides monthly benefits to children when a parent dies, as long as the deceased parent paid into the CPP. These benefits go to the guardian until the child turns 18. They are then paid directly to the child if they enroll in an educational institution like a university or community college. The child can be paid until they reach 25 years of age. 

• Nova Scotia Family Law website (nsfamilylaw.ca): Frequently asked questions about guardianship
• The Public Trustee of Nova Scotia: novascotia.ca/just/pto/
• Canada Child Benefit, Government of Canada: www.cra-arc.gc.ca/benefits/
• Federal Government Family and Caregiving Benefits: https://www.canada.ca/en/services/benefits/family.html
• Supreme Court of Nova Scotia (Family Division) – courts.ns.ca