GUARDIANSHIP – WHAT ARE THE LIMITATIONS?
Parents who have children under the age of majority will naturally want to provide for them in their Wills. In addition to arranging their inheritance, most parents will want to name a guardian for their children should both parents die at the same time or if a parent is in a single-parent situation.
Parents are open to make a direction as to who should become temporary guardians of their children, pursuant to section 16 of the Children’s Law Reform Act. However, there are limitations to a parent’s ability to make such an appointment. Firstly, an appointment of a guardian will only be effective for ninety days after the death of the testator. Before the ninety day period expires, the intended guardian must bring a court application to be permanently appointed. It is ultimately up to the courts to determine who the children will live with.
It must also be noted that an appointment of a guardian in a Will is only effective if the parent is the only one entitled to custody of the children. In other words, if only one parent dies and the other who is entitled to custody is still living, the child or children will live with the surviving parent, not the person the deceased named in their Will.
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