What will happen if you die or can't take care of your child?
If you die or can't take care of your child, what happens to your child depends on what kind of arrangements you've made ahead of time.
Usually both parents are their child's guardians. It doesn't matter whether the parents are together or not. (The only exceptions are when one parent never lived with and doesn't regularly care for the child, or there's a court order or written agreement that says one parent isn't a guardian.) Guardianship can be changed by a court order or agreement. For more information about what guardianship means, see our fact sheet Guardianship: Parenting time and parental responsibilities.
If you are the only guardian and you die without appointing a guardian for your children, the Public Trustee and Guardian and the Ministry of Children and Family Development become your child's guardian. The Public Trustee and Guardian becomes responsible for your child's financial and legal rights and the ministry becomes responsible for your child's health, education, and upbringing.
If your child has two guardians and you die without appointing a guardian, the surviving guardian becomes the child's only guardian.
If you share guardianship with someone and you want them to continue as your child's only guardian after you die or if you can't take care of your child, you don't have to do anything. It will happen automatically.
If you share guardianship with someone and you don't want that person to become your child's only guardian, you have to write down who you want to be your child's other guardian if you die or can't look after them anymore. This is called appointing a guardian. (See How do I record my decision?)
If you are the sole guardian, the other parent doesn't become the guardian if you die or can't take care of the child unless you appoint them as the guardian. Step-parents also don't automatically become guardians. If you want a step-parent to become a guardian if you die, you must appoint them.
There are two kinds of guardians:
- Stand-by guardian: Someone you name to become the child's guardian if you can't look after the child.
- Testamentary guardian: Someone you name to become a guardian if you die.
There are two ways you can record your decision about guardianship: make a will or fill out an Appointment of Standby or Testamentary Guardian (Form 2).
You can choose to use either of these ways, if you want to name a guardian to look after your children after you die because:
- you are the only guardian, or
- there is another guardian, but you want to appoint an additional guardian to replace you.
Make a will
You can name a guardian (or guardians) for your children in your will. But just because they're named in your will doesn't mean that a person must take on the responsibility of guardianship. The law says that for the person to become the guardian, he or she must agree to accept the responsibility, either verbally, in writing, or through their behaviour (for example, by stepping in to take care of the children if you get sick or die). So it's best if you ask this person if they're willing to accept the responsibility before you name them in your will.
Fill out an Appointment of Standby or Testamentary Guardian (Form 2)
To name a stand-by or testamentary guardian:
- Fill out an Appointment of Standby or Testamentary Guardian (Form 2)
- Sign the form in the presence of at least two witnesses. The two witnesses must be in the same room with you, and must watch you sign the form. The person you appoint to be guardian can't be a witness.
- Have the witnesses also sign the form.
In this form, you'll say who can decide that you're no longer able to look after your children (for example, like your doctor) before a stand-by guardian can take over.
If you've made a will that names your testamentary guardian, you don't also have to fill out this form.
A stand-by guardian must follow your wishes for the child wherever possible. If you can't care for your child, but you're still able to communicate, the stand-by guardian must consult you as much as possible about your child's care and upbringing.
If you appoint a stand-by guardian and then die, the stand-by guardian will continue as the child's guardian, no matter what you've put into a will or form. If you don't want the same person to be both your stand-by and testamentary guardian, you'll have to set that out clearly in the Appointment of Standby or Testamentary Guardian form.
You can change the testamentary guardian named in your will or cancel your appointment of a stand-by guardian at any time.
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