What will happen if you die or can't take care of your child?

If you die or can't take care of your children, what happens to them depends on what plans you've made for them.

Usually both parents are their children's guardians, even if they've separated or they're divorced.

A parent isn't a guardian if:

  • they've never lived with the children and don't regularly care for them (unless a court order or agreement says something different), or
  • there's a court order or written agreement that says they aren't a guardian.

Here are some tips about choosing a guardian for your children:

  • If you're writing a separation agreement, include what you want to happen with your children if you die.
  • Both parents can appoint (name) a guardian in their will. That guardian doesn't have to be the other parent.
  • If you want to be the only guardian if the other parent dies, write that in your separation agreement.
  • You can get a court order or agreement if you want to change who your children's guardians are.

See Guardianship: Parenting time and parental responsibilities for more information about guardianship.

What happens if you haven't made any plans?

If:

  • you're the only guardian for your children, and
  • you die without appointing a guardian for them,

the Public Trustee and Guardian and the Ministry of Children and Family Development will be your children's guardians.

The Public Trustee and Guardian will be responsible for your children's financial and legal rights. The ministry will be responsible for your children's health, education, and upbringing.

If:

  • you and one other person are your children's guardians, and
  • you die without naming another guardian to take your place,

the surviving guardian becomes the children's sole (only) guardian.

What if you want to choose a guardian?

There are two kinds of guardians:

  • Standby guardian: Someone you name to be your children's guardian if you can't look after them.
  • Testamentary guardian: Someone you name to be your children's guardian if you die.

If you can't take care of your children, or you want to make plans in case you die, sometimes you have to appoint (name) someone to be a guardian. (See How do you record your decision? below.) Sometimes it happens automatically.

  • If you share guardianship with someone and you want them to be your children's sole guardian, you don't have to do anything. The other person automatically becomes the sole guardian.
  • If you share guardianship with someone and you don't want them to be your children's sole guardian, you have to appoint another guardian.
  • If you're the sole guardian, your children's other parent doesn't automatically become their guardian. You need to appoint them as a guardian.

Step-parents don't automatically become guardians, even if they're living with your children. If you want a step-parent to become a guardian for your children, you have to appoint them.

How do you record your decision?

If you want to name a guardian to look after your children after you die because:

  • you're the only guardian, or
  • there's another guardian, but you want to appoint a guardian to replace you,

you can:

  • make a will, or
  • fill out an Appointment of Standby or Testamentary Guardian (Form 2).

Make a will

You can name a guardian (or guardians) for your children in your will.

Always ask a person before you name them as your child's guardian. They have to agree to it. They can agree:

  • verbally (they tell you in front of someone else that they'll do it),
  • in writing (ask someone to watch them sign and date their agreement), or
  • by their behaviour (for example, they take care of your children if you get sick or die).

Fill out an Appointment of Standby or Testamentary Guardian (Form 2)

To name a standby or testamentary guardian:

  1. Fill out an Appointment of Standby or Testamentary Guardian (Form 2) (PDF).
  2. Sign the form in front of at least two witnesses. They both have to be there when you sign it. The person you appoint to be a guardian can't be a witness.
  3. Ask the witnesses to sign the form.

In this form, you write who can decide that:

  • you can't look after your children any more (for example, your doctor), and
  • it's time for your standby guardian to take your place.

If you've put the name of your testamentary guardian in your will, you don't have to fill out this form.

Can you say how you want the standby guardian to look after your children?

A standby guardian has to look after your children in the way you want as much as possible. If you can't care for your children but you can still communicate, the standby guardian has to talk to you as much as possible about what you want.

What happens if you die while you have a standby guardian?

If you appoint a standby guardian and then die, the standby guardian will be the child's guardian, no matter what you've written in your will or on Form 2.

If you don't want the same person to be both your standby and testamentary guardian, make that clear in Form 2.

You can change the name of your testamentary guardian in your will or change your choice of a standby guardian whenever you want to.